State v. Payne

• Decision Date: 03 July 2019
• Docket Number: A166061
• Citation: 298 Or.App. 438,447 P.3d 71
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Isaiah K. PAYNE, aka Isaiah Khalil, Defendant-Appellant.
• Court: Oregon Court of Appeals

298 Or.App. 438

447 P.3d 71

STATE of Oregon, Plaintiff-Respondent,

v.Isaiah K. PAYNE, aka Isaiah Khalil, Defendant-Appellant.

A166061

Court of Appeals of Oregon.

Argued and submitted May 8, 2019.

July 3, 2019

Sara F. Werboff, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and James, Judge, and Landau, Senior Judge.

LANDAU, S. J.

Defendant appeals a judgment of conviction for third-degree sexual abuse. ORS 163.415. He advances a number of assignments of error, all but one of which we reject without discussion. We write to address only his contention that the trial court erred in failing to deliver a witness-false-in-part jury instruction. We conclude that, even assuming for the sake of argument that the trial court erred in failing to deliver the instruction, any such error was harmless. We therefore affirm.

At trial, the victim testified that she and defendant knew each other socially. She said that, one evening after chatting outside, they agreed to continue their conversation in defendant’s car. She testified that, once in the car, defendant began propositioning her sexually and ultimately exposed himself, grabbed her hand, placed it on his erect penis, and caused her to masturbate him. She said that she was afraid of defendant and did not get out of the car because she knew defendant to carry a firearm.

The victim explained that she later reported the incident to the police. The police report stated that she had told Officer Buck that she did not get out of the car because, "if I ran, a strong muscular black man could catch me." At trial, however, the victim said that, "I did not say it like that. I said a man with his size and structure—his stature, if I was to just lean over, just have this much space and have to hop down, how could he not grab me too. I’m pretty sure he’s bigger than me, and he can run faster than me." She said that she did not remember saying anything about defendant being black.

On the basis of the victim’s testimony, defendant requested the uniform witness-false-in-part instruction, which provides:

"Sometimes a witness may give incorrect or even inconsistent testimony. This does not necessarily constitute lying on the part of the witness. The witness’s testimony may be an honest mistake or confusion. The witness may simply forget matters, or his or her memory of an event may contain honest inconsistencies or contradictions. Also, different witnesses may observe or recount the same event differently.

"However, if you find that a witness has intentionally lied in part of his or her testimony, you may, but are not required to, distrust other portions of that witness’s testimony.

"As jurors, you have the sole responsibility to determine which testimony or portions of testimony you will or will not rely on in reaching your verdict."

Defendant argued that, "there’s been conflicting testimony that rises to—above just inconsistency. I asked [the victim] if she said the words ‘strong black man,’ she said, ‘no, I did not say that. Those are not my words.’ " The trial court declined to deliver the instruction, concluding that defendant had "made an insufficient showing to trigger the giving of that instruction."

During closing argument, defendant repeatedly challenged the victim’s credibility. He argued that she "has been known to lie." He noted that, with respect to her report to the police,

"[s]he refused to admit that she had made the statements to the police officer. Her statement that she was sure a big muscular black man could catch her. More changing in stories, more malleable facts. The story sounds like something she made up after the fact to what she had done as an excuse as to why she cheated on her boyfriend."

The jury returned a verdict of guilty.

On appeal, defendant argues that the trial court erred in failing to deliver the requested witness-false-in-part instruction. The state argues that the trial court did not abuse its discretion in failing to deliver the instruction and, in any event, any error in failing to deliver it was harmless. Defendant rejoins that the error was not harmless, because the failure to deliver the instruction "deprived defendant of an argument that [the victim’s] falsehoods on the stand rendered her entire testimony not credible."

As we noted at the outset, we need not determine whether the trial court erred in failing to deliver the requested instruction because, even if it did, the error was harmless. We are required to affirm the trial court in spite of error if "there is little likelihood that the error affected the verdict." State v. Davis , 336 Or. 19, 32, 77 P.3d 1111 (2003). There is, in this case, little likelihood that the failure to deliver the uniform witness-false-in-part instruction affected the verdict, given the nature of the witness-false-in-part instruction itself and the record of the trial.

The uniform witness-false-in-part instruction is derived from ORS 10.095(3), which states that, "on all proper occasions," the jury is to be instructed "[t]hat a witness false in one part of the testimony of the witness may be distrusted in others." The instruction actually "makes no demand on the jury; it simply describes what the jury is empowered to do." State v. Long , 106 Or. App. 389, 395, 807 P.2d 815 (1991), adh’d to as...