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State v. Milnes

Summarized by: 

Date Filed: 05-22-2013
Case #: A146765
For the Court Armstrong, P.J.; Duncan, J.; and Brewer, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A146765.pdf

Criminal Procedure: In order to issue the witness-false-in-part jury instruction a witness must clearly have consciously testified falsely.

Defendant appealed her conviction for felon in possession of a firearm that revoked her probation.  On January 8, 2010, police responded to a domestic disturbance. Defendant denied that her boyfriend was present when questioned by police, and claimed to have been talking to her dog. However, the boyfriend was found hiding beside the bed. When police asked if there were any weapons, Defendant ran for the door and was arrested. A rifle and rounds were found in Defendant’s room.  The trial court issued the witness-false-in-part jury instruction, and the jury found Defendant guilty and revoked her probation. On appeal, Defendant assigned error to issuing the witness-false-in-part jury instruction. The Court of Appeals held that the instruction was given in error because the testimony was not internally inconsistent. Although Defendant lied to police, she admitted on cross examination that she had previously lied, so the inconsistency didn't tend to show falsity in Defendant's trial testimony. The Court further held that the error was not harmless because the instruction diminished the credibility of Defendant's testimony under oath.  Reversed and remanded.