379 P.3d 728
Washington Cty. Cir. Ct., O.R.2016Background
- Defendant was convicted under ORS 811.700 for failing to perform duties after colliding with an unattended vehicle (leaving without locating owner or leaving contact information).
- At trial defendant testified he heard a noise while backing over a speed bump, inspected the other car, did not see any damage, and said “I know that I didn’t hit the car.”
- A bystander testified he heard a metal-on-metal sound, saw defendant inspect vehicles, and later observed a “big impact” on the parked car’s rear fender.
- The investigating officer testified he saw plainly visible damage from 10–15 feet away covering about 12 inches on the driver’s-side back fender.
- Defendant requested that the court not give the witness-false-in-part instruction (UCrJI 1029) as the record did not support an inference of conscious falsity; the trial court gave the instruction and defendant appealed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the record supported giving the witness-false-in-part instruction (UCrJI 1029) | Testimony that damage was plainly visible conflicted with defendant’s testimony that he did not see damage, permitting an inference of conscious falsehood | Defendant’s testimony could reflect honest failure to observe damage and does not prove conscious falsity; Milnes distinguishes types of inconsistencies | Court affirmed: inconsistencies allowed a jury to infer conscious falsity and the instruction was properly given |
| Whether the form of the instruction given was improper because it included an outdated sentence amounting to a comment on the evidence | State argued challenge was not preserved below | Defendant argued the instruction included a sentence removed from the current UCrJI that impermissibly commented on the evidence | Court declined to reach the claim: challenge to form was not preserved and defendant did not request plain error review |
Key Cases Cited
- Ireland v. Mitchell, 226 Or. 286 (establishes test for when a witness-false-in-part instruction is appropriate)
- State v. Milnes, 256 Or. App. 701 (explains that inconsistencies support the instruction only if they permit an inference of conscious falsity)
- State v. Foote, 154 Or. App. 227 (statute construed to require proof that accident caused harm to other vehicle)
- State v. Ardizzone, 270 Or. App. 666 (discusses preservation and plain error review principles)
- State v. Tilden, 252 Or. App. 581 (explains appellant’s burden when seeking plain error review)