State v. Payne

                                       588

   Argued and submitted January 16; decision of Court of Appeals reversed,
 judgment of circuit court reversed in part, and case remanded to circuit court
                      for further proceedings July 2, 2020


                   STATE OF OREGON,
                   Respondent on Review,
                              v.
                    ISAIAH K. PAYNE,
                     aka Isaiah Khalil,
                    Petitioner on Review.
          (CC 15CR60083) (CA A166061) (SC S066919)
                                   

     Defendant was charged with third-degree sexual abuse following a sexual
encounter in a parked car. Defendant requested the uniform witness-false-in-
part jury instruction after the complainant testified that she had not referred
to defendant’s race in her statement to police, but the responding officer tes-
tified that he had included the racial description as a direct quote from the
complainant. The trial court declined to give the instruction, and the Court of
Appeals affirmed. Held: (1) A “proper occasion” requiring a trial court to give
the witness-false-in-part instruction in ORS 10.095(3) exists when, consider-
ing the testimony and other evidence viewed in the light most favorable to the
party requesting the instruction, the trial court concludes that sufficient evi-
dence exists for the jury to decide that at least one witness consciously testified
falsely and that the false testimony concerns a material issue; (2) a reviewing
court reviews the trial court’s refusal to give a timely requested and legally cor-
rect witness-false-in-part instruction for legal error, overruling in part Ireland v.
Mitchell, 

, 

 (1961); (3) sufficient evidence supported giving
the requested instruction; and (4) the trial court’s error in refusing to give the
instruction was not harmless.
    The decision of the Court of Appeals is reversed. The judgment of the circuit
court is reversed in part, and the case is remanded to the circuit court for further
proceedings.



    En Banc
    On review from the Court of Appeals.*
   Sara F. Werboff, Deputy Public Defender, Office of Public
Defense Services, Salem, argued the cause and filed the
briefs for petitioner on review. Also on the briefs was Ernest
G. Lannet, Chief Defender.
______________
    * Appeal from Multnomah County Circuit Court, Jerome E. LaBarre, Judge.

, 

 (2019).
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   Joanna Hershey, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
   NAKAMOTO, J.
  The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is reversed in part, and the case is
remanded to the circuit court for further proceedings.
590                                                          State v. Payne

           NAKAMOTO, J.
         During defendant’s trial for third-degree sexual
abuse, the complainant denied including a racial descrip-
tion of defendant in her statement to police and accused
defense counsel of trying to make her look racist. The author
of the police report testified that he had included that racial
description in quotation marks because it was a direct quote
from the complainant. Based on the difference between
the officer’s testimony and the complainant’s testimony,
defendant requested the uniform witness-false-in-part jury
instruction. The trial court denied that request, and the
jury found defendant guilty. The Court of Appeals affirmed,
concluding that, even if the trial court had erred in failing
to deliver the requested witness-false-in-part instruction,
any error was harmless. State v. Payne, 

, 

 (2019).
         We allowed defendant’s petition for review to
address whether a trial court must give a requested witness-
false-in-part jury instruction if there is evidence to support
a conclusion that a witness consciously testified falsely. The
first question on review is whether the trial court erred in
refusing to give the requested instruction. Based on our
statutory construction of the phrase “all proper occasions”
in ORS 10.095, we conclude that the court should have given
the instruction. The second question on review is whether
the trial court’s failure to give that instruction constituted
harmless error. We conclude that it did not. Accordingly, we
reverse the decision of the Court of Appeals and the judg-
ment of conviction on the sexual abuse count, and we remand
the case to the circuit court for further proceedings.1
                          I. BACKGROUND
      The trial concerned an encounter between two young
adults—the complainant, who is white, and defendant, who
is Black—as they sat in defendant’s parked car. After the

    1
      The state also charged defendant with unlawful possession of a firearm
(Count 2), which stemmed from when defendant later was taken into custody.
Defendant filed a demurrer on the grounds that the two counts were not properly
joined under ORS 132.560. The circuit court granted the demurrer, and defen-
dant eventually pleaded guilty to Count 2. That count is not relevant to the dis-
cussion in this case.
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complainant reported the incident to the police two days
later, the state charged defendant with third-degree sexual
abuse. At trial, the defense theory was that the complainant
had made a false report about a consensual sexual encoun-
ter. The key witnesses at trial were the complainant and
defendant.
         The complainant testified to the events of that
night and explained that the sexual contact was unwanted:
She knew defendant socially, and defendant had unex-
pectedly arrived at her and her mother’s apartment that
night. Defendant had recently been hit by a car and was
using crutches. They began a conversation outside and then
agreed to continue it in defendant’s car. She removed defen-
dant’s hand from her thigh three times before he eventu-
ally exposed himself, took her hand, and put her hand on
his penis, causing her to masturbate him. After defendant
ejaculated on her hand, she got out of the car and wiped her
hand on her pants. She estimated that she was in the car
for 30 to 45 minutes and stated that she had not left the car
because she was afraid of defendant, who on two occasions
had shown her a gun that he owned. Her boyfriend, whom
she described as a “jealous” person, and her mother encour-
aged her to go to the police.
          On cross-examination, defense counsel questioned
the complainant about her statement to the police. As per-
tinent here, the responding officer’s report quoted the com-
plainant as saying, “There is no doubt that if I ran, a strong
muscular black man could catch me.” The complainant
denied referring to defendant’s race and stated that she
referred only to his size and muscles as a reason she had
not left the car. Over the course of the exchange, the com-
plainant responded that she “did not say it like that,” that she
“[didn’t] remember saying those words,” that “those words
are not exactly [her] words,” and that she “didn’t say things
like that; that [did] not sound like [her.]” The complainant
also stated that she “didn’t not [sic] say strong black man”
and that she had heard defense counsel “yesterday trying to
make [her] sound like [she] was racist.”
         After the complainant testified, defense coun-
sel informed the court that he would be requesting the
592                                              State v. Payne

witness-false-in-part instruction because he anticipated
conflicting testimony from the police officer who made the
report. The court described the instruction as “disfavor[ed]”
and explained that “[a]ny presentation by an attorney
requesting it * * * requires [that attorney] to make a show-
ing that it actually applies in this case for some reason.”
       The police officer subsequently testified. He confirmed
on cross-examination that he had asked the complainant
why she had not gotten out of the car and that her explana-
tion, including the phrase “strong muscular black man,” was
a direct quote from the complainant.
       Defendant, the sole witness in his defense, described
the encounter differently than the complainant had: A
mutual friend invited him to the gathering at complainant’s
apartment. Because a car had hit him while he was crossing
a street several days earlier, he drove across the street to
the complainant’s apartment complex. He joined the gather-
ing, and, when he was leaving, the complainant walked with
him downstairs to his car. They sat in his car for 45 min-
utes to an hour. Their encounter was mutually flirtatious,
and the complainant was a willing participant. He did not
use any force or coerce the complainant to engage in sexual
contact. He noticed that the complainant’s body language
changed only when her boyfriend pulled up in the spot next
to his car.
        Based on the conflict between the complainant’s
testimony and the police officer’s testimony, defense coun-
sel requested the uniform witness-false-in-part instruction.
That instruction provides:
       “Sometimes a witness may give incorrect or even incon-
   sistent 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 intention-
   ally lied in part of his or her testimony, you may, but are
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   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.”
UCrJI 1029.
         In support of his request, defense counsel argued
that the uniform instruction did not direct the jury to con-
clude that any witness had lied and instead offered guid-
ance. He also argued that the record supported giving the
instruction because the conflicting testimony went beyond
“just inconsistency.” The prosecutor did not contend that
the uniform instruction was legally incorrect or otherwise
faulty. She argued that the court could not give it because
the record reflected the complainant’s mistake, confusion, or
hazy recollection rather than willfully false testimony. The
trial court refused to give the instruction, determining that
defendant had “made an insufficient showing to trigger the
giving of that instruction.”
         During closing argument, defense counsel repeat-
edly attacked the complainant’s credibility. Among other
things, he drew the jury’s attention to the difference between
her trial testimony and her statement to the police. Defense
counsel also argued that the complainant was motivated to
report the event as nonconsensual to save her relationship
with her boyfriend and that the complainant’s friends and
mother and “society’s expectations” supplied other reasons
for the complainant to make a false report. The jury found
defendant guilty.
         Defendant appealed and, as relevant here, assigned
error to the trial court’s failure to give the uniform witness-
false-in-part instruction. Payne, 

.
Although the parties at trial had not disputed whether the
complainant’s denial of what she had told the police was
material, in the Court of Appeals, the state contended that
(1) the trial court had correctly concluded that the evidence
was insufficient to require giving the witness-false-in-part
instruction and, in any event, (2) the “testimonial conflict
was not material or significant.”
594                                              State v. Payne

          The Court of Appeals affirmed defendant’s convic-
tion, explaining that it did not need to determine whether
the trial court erred, because, ultimately, any error was
harmless. Payne, 

. It concluded that
there was “little likelihood that the failure to deliver the
uniform witness-false-in-part instruction affected the ver-
dict, given the nature of the witness-false-in-part instruc-
tion itself and the record of the trial.” 

. The court
described the instruction as having “long been subject to
criticism, given that it not only fails to require anything
of the jury but also merely restates common sense and can
consist of an improper comment on the evidence.” 

.
And, the court noted, defendant had been able to specifi-
cally address the inconsistency between the complainant’s
trial testimony and the police report during closing argu-
ment. 

. Thus, while expressing doubt about the
necessity of the instruction in any case, the Court of Appeals
concluded that any error in defendant’s case was harm-
less. 

                       II. ANALYSIS
         The uniform witness-false-in-part instruction that
defendant requested, Uniform Criminal Jury Instruction
1029, is based on ORS 10.095(3). That statute provides 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[.]”
         On review, the parties’ arguments center around
two legal issues. First, the parties dispute the predicate for
a trial court to give the witness-false-in-part instruction,
namely, what constitutes a “proper occasion” under ORS
10.095(3). Second, and relatedly, the parties have different
views on the correct standard of review of a trial court’s
determination whether to give the instruction, which they
draw from their respective readings of Ireland v. Mitchell,

, 

 (1961), and even earlier case law
from this court. Boiled down, the issues the parties pres-
ent concern the extent to which a trial court has discretion
in determining whether it is proper to give the statutory
instruction in ORS 10.095(3). Accordingly, we begin the
analysis with the statute.
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A.    The “Proper Occasion” for Giving the Statutory Instruc-
      tion in ORS 10.095(3)
           In its entirety, ORS 10.095 provides:
         “The jury, subject to the control of the court, in the cases
     specified by statute, are the judges of the effect or value
     of evidence addressed to them, except when it is thereby
     declared to be conclusive. They are, however, to be instructed
     by the court on all proper occasions:
         “(1) That their power of judging of the effect of evi-
     dence is not arbitrary, but to be exercised with legal discre-
     tion, and in subordination to the rules of evidence;
         “(2) That they are not bound to find in conformity with
     the declarations of any number of witnesses, which do not
     produce conviction in their minds, against a less number,
     or against a presumption or other evidence satisfying their
     minds;
        “(3) That a witness false in one part of the testimony of
     the witness may be distrusted in others;
        “(4) That the testimony of an accomplice ought to be
     viewed with distrust, and the oral admissions of a party
     with caution;
        “(5) That in civil cases the affirmative of the issue shall
     be proved, and when the evidence is contradictory, the find-
     ing shall be according to the preponderance of evidence;
        “(6) That in criminal cases a person is innocent of a
     crime or wrong until the prosecution proves otherwise, and
     guilt shall be established beyond reasonable doubt;
        “(7) That evidence is to be estimated, not only by its
     own intrinsic weight, but also according to the evidence
     which it is in the power of one side to produce and of the
     other to contradict; and, therefore,
         “(8) That if weaker and less satisfactory evidence is
     offered when it appears that stronger and more satisfac-
     tory was within the power of the party, the evidence offered
     should be viewed with distrust.”
(Emphases added.) The eight jury instructions that trial
courts are directed to give on “all proper occasions” are com-
monly referred to as “statutory instruction[s].” See Ireland,

. By its terms, the statute mandates that a
596                                              State v. Payne

trial court give a statutory instruction once it determines
that the occasion is “proper.”

         Defendant asserts that, under ORS 10.095, a “proper
occasion” requiring the witness-false-in-part instruction
“exists when there is evidence from which a jury could con-
clude that a witness was consciously false and the false tes-
timony was material.” Defendant further argues that the
trial court must view the record in the light most favorable
to the requesting party when determining whether a “proper
occasion” exists, and the trial court’s determination about
the sufficiency of the record is subject to review for whether
it was legally correct.

         The state responds that the statutory phrase “on
all proper occasions” is facially ambiguous and that the
witness-false-in-part instruction is disfavored. The state
reads Ireland as creating a spectrum between manifest per-
jury, where the instruction would be required as a matter of
law, and no inconsistent testimony, where giving the instruc-
tion would be an abuse of discretion. In the broad middle of
that spectrum, the state asserts, a trial court has discretion
to decide whether to give the instruction, and a trial court
abuses its discretion only when inconsistent testimony per-
tains to a material issue and establishes intentional false
testimony. In the state’s view, it follows that the trial court’s
decision must be reviewed for an abuse of discretion.

         We first turn to analyzing what the legislature
intended by using the phrase “on all proper occasions,” using
the familiar statutory construction framework. See State v.
Gaines, 

, 

 (2009) (instruct-
ing us to examine the text and context of the statute and
any useful legislative history). The statute does not define
“proper,” the key word in the phrase, but it is axiomatic in
Oregon that undefined words of common usage in a statute
“typically should be given their plain, natural, and ordinary
meaning.” PGE v. Bureau of Labor and Industries, 

, 

 (1993).

        Although this court often consults dictionaries to
help gain insight into what the legislature intended by using
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 (2020)                                   597

a word, in this case, as might be expected, dictionary defi-
nitions provide little content for discerning what a “proper”
occasion for giving a statutory instruction is. Because the
phrase “all proper occasions” appeared in the statute when
it was originally enacted, General Laws of Oregon, Civ
Code, ch IX, title IX, § 835, pp 355-56 (

-1864),
we look to dictionaries from that era. “Proper” was defined,
among other things, as, “suitable in all respects ; appropri-
ate ; right ; fit[.]” Webster’s Int’l Dictionary 1148 (unabridged
ed 1907). And Bouvier’s Law Dictionary contains a simi-
larly broad and general definition of “proper”: “[t]hat which
is essential, suitable, adapted, and correct.” John Bouvier,
2 Bouvier’s Law Dictionary 394 (1860).
         Thus, we agree with the state that the word “proper”
in the statute is ambiguous. It can support the state’s view
that a trial court has discretion to decide that it is “proper”
to give the instruction, and its choice is reviewed for an
abuse of discretion. But a determination of what is “proper”
can also encompass defendant’s view that a trial court is
called on to make a correct legal determination about the
evidence that is reviewed for legal error.
        We next examine the text in context. Among other
things, context includes “prior opinions of this court inter-
preting the relevant statutory wording.” Ogle v. Nooth, 

, 

 (2014). As the parties recognize,
this court’s prior opinions concerning the statute provide
important context in this case.
         Preliminarily, we note that this court has held that
some of the statutory instructions in ORS 10.095 are appli-
cable to trials generally, while others are tailored to specific
circumstances that may or may not arise in a trial; accord-
ingly, what constitutes a “proper occasion” depends on the
requested statutory instruction. See, e.g., Godvig v. Lopez,

, 

 (1949) (“The giving or refusal
to give a statutory instruction may or may not constitute
error, depending in each case upon the nature of the issues
presented by pleading and evidence.”); Hotelling v. Walther,

, 

 (1944) (some instructions
“may properly be given in those cases only where a basis for
them is found in the evidence,” which is “not always easy to
598                                                             State v. Payne

determine”).2 For example, the burden of proof by a prepon-
derance of the evidence in subsection (5) is applicable to any
civil case, and so the statutory instruction is proper in any
civil case; likewise, subsection (6), describing the presump-
tion of innocence and the “beyond reasonable doubt” burden
of proof, is proper to give in any criminal case. In contrast,
subsection (8) applies by its terms in one circumstance: “if
weaker and less satisfactory evidence is offered when it
appears that stronger and more satisfactory was within the
power of the party[.]”
         On its face, the witness-false-in-part instruction
in ORS 10.095(3) could fall into either category. It could be
generally applicable in any trial. As the Court of Appeals
observed, the instruction now states a “common sense”
concept—that is, a witness who has lied under oath as to one
thing could be lying as to others. Payne, 

.
Indeed, the model Ninth Circuit instructions on credibil-
ity of witnesses for both criminal and civil trials in federal
court include a section informing jurors that, “if you decide
that a witness has deliberately testified untruthfully about
something important, you may choose not to believe any-
thing that witness said” or, “if you think the witness testi-
fied untruthfully about some things but told the truth about
others, you may accept the part you think is true and ignore
the rest.” Manual of Model Criminal Jury Instructions for the
Ninth Circuit, § 3.9 (2010, last updated Dec 2019); Manual
of Model Civil Jury Instructions for the Ninth Circuit, § 1.14
(2017, last updated Dec 2019). But the statutory instruction
in ORS 10.095(3) also could be limited to a specific circum-
stance that has happened during a trial: “a witness false in
one part of the testimony of the witness.”
         This court has long held that the latter view of ORS
10.095(3) is correct, with the instruction being limited to
a specific circumstance involving a witness who may have

    2
      The lone exception is Kern v. Pullen, 

, 

 (1931). In that
case, this court held that the trial of every case was a “proper occasion” to give
the statutory instructions and that all of them were mandatory upon a party’s
request, except for the appropriate choice of the specific instruction meant to
relate only to a civil or criminal case. 

. That holding, however, was over-
ruled 10 years later in Fitze v. American-Hawaiian SS. Co., 

,

 (1941).
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knowingly testified falsely. See, e.g., Simpson v. Miller, 

, 

 (1910). That is unsurprising given that the
court’s prior cases have addressed the originally enacted
statutory instruction, which until 2013 required that jurors
be told that, if a witness had deliberately given false testi-
mony, then they were to distrust other parts of that witness’s
testimony: “[A] witness, false in one part of his testimony, is
to be distrusted in others[.]” General Laws of Oregon, Civ
Code, ch IX, title IX, § 835, p 356 (

-1864); Or
Laws 2013, ch 25, § 1 (changing “is to be distrusted” to “may
be distrusted”).
          Ireland v. Mitchell, decided almost 60 years ago, is
the latest of those cases. In Ireland, the plaintiff exposed
“[m]inor inconsistencies” between the defendant’s trial tes-
timony and his deposition testimony from two years earlier.

. Relying on those inconsistencies, the plain-
tiff requested the witness-false-in-part instruction, which at
the time was contained in former ORS 17.250 (1959). This
court stated the following test for determining a proper
occasion for giving the statutory instruction: The trial court
must “determine, from all the testimony, whether or not
there has been sufficient evidence for the jury to decide that
at least one witness consciously testified falsely.” 

.
And while Ireland did not explicitly add materiality to the
test, it recognized that a trial court could properly consider
the materiality of the falsehood. 

 (“While most of
the authorities would further limit the application of the
instruction to a material falsehood, the rule is probably one
of convenience rather than one based on logic. The material-
ity of inconsistent testimony should be a matter for the trial
court’s discretion.” (Citation omitted.)).
         Earlier cases support the basic test articulated
in Ireland. In Simpson, for example, one of the first cases
examining the witness-false-in-part instruction, this court
explained that the instruction applies only when there is
“a state of facts from which the jury may be authorized to
believe, and they must believe the evidence willfully false
in some particular before they are authorized to discredit
the whole of the evidence of such witness[.]” 

(emphasis added). And in State v. Goff, 

, 

 (1914), this court explained that, when a witness had
600                                                            State v. Payne

“knowingly testified falsely as to a material point in a case,”
the instruction “requir[ed] the jury to distrust other parts of
his evidence[.]” (Emphasis added.) The court in Goff required
what Ireland recognized as a factor in other cases: that the
false testimony relate to a material issue.
         Thus, this court’s case law long ago established that
a “proper occasion” for giving the statutory instruction in
ORS 10.095(3) requires a court’s determination that the jury
could find that a witness knowingly testified falsely about
a material fact. More specifically, we hold that a “proper
occasion” to give the witness-false-in-part instruction exists
when, considering the testimony and other evidence a
party has brought to the court’s attention in support of the
requested instruction, the trial court concludes that suffi-
cient evidence exists for the jury to decide that at least one
witness consciously testified falsely and that the false testi-
mony concerns a material issue.3
         Exactly how a trial court must proceed to apply
that test during trial is the core issue presented. As men-
tioned, the state relies on Ireland in contending that a trial
court has significant discretion to decide whether to give the
witness-false-in-part instruction, even after concluding that
sufficient evidence exists for the jury to decide that at least
one witness consciously testified falsely and that the false
testimony concerns a material issue, and so a trial court’s
ruling is reviewed for an abuse of discretion. Defendant
reads Ireland as providing a trial court with limited discre-
tion to assess the atmosphere of the trial, as it determines
two legal questions: whether the record would permit the
jury to find that a witness consciously testified falsely and
whether the testimony was material. In defendant’s view,
this court’s case law establishes that a trial court’s ruling
on a requested witness-false-in-part instruction is reviewed
for legal error.
     3
       We also clarify that the witness-false-in-part instruction is not disfavored
in Oregon. The mandate of ORS 10.095 is that the instruction be given on “all
proper occasions.” Even in Ireland, which appears to be the genesis of the idea
that the instruction is disfavored, see 

 (observing that some “author-
ities have questioned the wisdom” of giving the instruction “in routine cases”),
the court explained that the instruction could “produce speculation and mischief
in the jury room” if it were “given abstractly,” 

, that is, unsupported
by the record.
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         The confusion about what Ireland requires a trial
court to do when a party requests the witness-false-in-part
instruction stems from contradictory statements in the
opinion about a trial court’s “discretion” to decide whether
to give the instruction. The court states at one point that it
is “reversible error to refuse to give a particular statutory
instruction upon timely request when there is a basis in the
evidence for giving it.” 

. Later in the opinion,
the court introduces “discretion” while suggesting that the
sufficiency of the evidence is a legal question with one cor-
rect answer:
       “The rule in Oregon is that while the giving of the statu-
   tory instruction is discretionary with the trial court, it is an
   abuse of discretion to refuse a timely request for a statutory
   instruction if the evidence makes the instruction appropri-
   ate. In each case it is necessary to review the evidence and
   to try to recapture, as much as is possible for an appellate
   court, the atmosphere of the trial which guided the trial
   judge.”

 (emphasis added). In other words, as defen-
dant argues, even though Ireland characterized the failure
to give a witness-false-in-part instruction when the evi-
dence supported it as an “abuse of discretion,” this court was
describing legal error.
         But in the next paragraph of the opinion, this court
stated that, “[p]ut in its simplest form, the problem becomes
one of defining the boundaries of judicial discretion.” 

 The
court then appeared to state an abuse-of-discretion stan-
dard of review: “In the first instance the trial judge must
decide what is a proper occasion. This court must reverse if
the record shows that the trial court abused its discretion.”

         Defining the boundaries of a trial court’s discre-
tion, this court then explained that a trial court must decide
whether to give the instruction in the many circumstances
at trial that lie between two extremes, where giving the
instruction is mandatory or is forbidden. At one end, “[t]he
most obvious case in which the instruction would be required
by the statute would be a case in which a witness has man-
ifestly perjured himself.” 

. At the other end, “[a]
602                                            State v. Payne

case in which no witness has made inconsistent statements
is not a proper case for the giving of the instruction.” 

. In the middle is the more “difficult” case in which
one or more witnesses made inconsistent statements.

. The court cautioned that some inconsistent state-
ments, those involving “[m]ere honest mistake, confusion,
and hazy recollection,” do not provide an occasion to invoke
the instruction. 

.

          Although that discussion suggests that a trial court
usually has discretion to decide whether the evidence sup-
ports giving the statutory instruction, defendant contends
that the court was reacting to a plaintiff whose position was
that the instruction should be given in virtually every case
where facts are in dispute and the testimony conflicts. See
Ireland, 

 (characterizing the plaintiff’s posi-
tion). In defendant’s view, “discretion” as used in the opinion
refers to the court’s responsibility to determine whether the
record supports giving the instruction, and Ireland should
be read as cautioning litigants and trial courts to discern
the difference between mere conflicting testimony and evi-
dence sufficient for a jury to conclude that a witness con-
sciously testified falsely.

         We conclude, however, as the state argues, that
Ireland ultimately lands on an abuse-of-discretion standard
of review. That understanding follows from the court’s appli-
cation of the test it had articulated. The court concluded
that the “instruction requested could properly have been
given” because the jury “could have found that the defen-
dant’s testimony did not ring true,” yet held that the trial
court’s refusal to give the witness-false-in-part instruction
was “within the legitimate scope of judicial discretion[.]”

. If the court had applied a legal-error stan-
dard of review, it would have held that the trial court had
erred in declining to give the instruction. Our reading
also is confirmed by the concurring opinion, which dis-
agreed “with the view expressed by the majority that the
trial court has any discretion in determining whether or
not the instruction should be given when requested by a
party.” See Ireland, 

 (Perry, J., specially
concurring).
Cite as 

 (2020)                                                      603

         Nevertheless, this court no longer applies an abuse-
of-discretion standard when reviewing a trial court’s refusal
to give a requested jury instruction.4 A recent example in
a civil case is Ossanna v. Nike, Inc., 

, 

 (2019), in which we stated that we “review a trial
court’s failure to give a requested jury instruction for errors
of law, and evaluate the evidence in the light most favorable
to the establishment of the facts necessary to require the
instruction.” (Citations omitted.) Another recent example in
a criminal case is State v. McNally, 

, 

 (2017), in which we applied a legal-error standard
of review and explained that “[a] criminal defendant is enti-
tled to have the jury instructed in accordance with his or
her theory of the case if the instruction correctly states the
law and there is evidence to support giving it.”
         The application of the legal-error standard of review
is not limited to recent cases. With one arguable exception,
for decades, this court has applied a legal-error standard—
not review for an abuse of discretion—when reviewing a
trial court’s refusal to give a requested jury instruction.5 In
1979, we stated in State v. McBride, 

, 

 (1979), that a “criminal defendant is entitled to
have his theory of the case presented to the jury if there is
evidence to support it,” and that the trial court “is not vested
with discretion to refuse an instruction supported by the
evidence.” In State v. Langley, 

, 

(2000), we stated: “This court reviews a trial court’s refusal
to give a requested jury instruction for error as a matter of
law.” An example of a civil case in which the same principles
apply is Hernandez v. Barbo Machinery Co., 

,

    4
      However, we review a trial court’s choice among requested jury instruc-
tions “that supply the same information” for an abuse of discretion. See, e.g., State
v. Moore, 

, 

 (1996). Our discussion in this case does
not affect the standard of review in that situation.
    5
      In State v. McDonnell, this court stated that “when we review a trial court’s
decisions in its choice of instructions, we normally will look only for any abuse of
discretion.” 

, 

 (1992) (citing Ireland, 

).
That case involved the “weaker or less satisfactory evidence” statutory instruc-
tion and one defining the term “conscious.” 

 Although this court stated that it
would apply an abuse-of-discretion standard of review, a closer reading of that
case demonstrates that we reviewed the trial court’s decision on instructions for
legal error, and the court held that the record did not support the defendant’s
request for the “weaker and less satisfactory evidence.” Id. at 503.
604                                             State v. Payne

 (1998) (holding that the “parties in a civil action
are entitled to jury instructions on their theory of the case
if their requested instructions correctly state the law, are
based on current pleadings in the case, and are supported
by evidence”).
          Defendant relies on those principles in the case law
since the decision in Ireland and on Denton v. Davis, 

, 

 (1951), a decision of this court before
Ireland, to advance his position that a trial court cannot
deny a request for the witness-false-in-part instruction when
it is supported by the evidence in the record. Defendant cites
Denton as additional context for understanding ORS 10.095.
In that case, after the trial court had given the instructions
to the jury, but before the jury retired for deliberations, the
plaintiff’s counsel excepted to the instructions because they
did not include the “witness counting” statutory instruction,
now found in ORS 10.095(2). Denton, 

. The
trial court acknowledged that the plaintiff’s counsel might
be correct but declined to give the instruction at that point to
avoid calling too much attention to it. 

. This court
reversed the judgment in favor of the defendants because
of the trial court’s refusal to give the instruction when the
number of defense witnesses “greatly outnumbered” those
for the plaintiff. 

. The court emphasized that
the refusal was not discretionary: “Upon a proper request
for the giving of a statutory instruction, or when a timely
exception is taken, the court must, on all proper occasions,
give such instruction, and a failure so to do constitutes error.
It is not a matter of discretion.” 

         Defendant does not explicitly ask us to overrule
the portion of Ireland that adopted an abuse-of-discretion
standard of review. Instead, defendant contends that to read
Ireland in that way conflicts with the holding in Denton and
now well-established law to the contrary. Nevertheless, we
are presented with conflicting cases, and defendant con-
tends that the abuse-of-discretion standard of review, which
Ireland applied, does not apply, implicating stare decisis
concerns. See Multnomah County v. Mehrwein, 

, 

 (2020) (describing inconsistency
between earlier decisions from this court as part of stare
decisis inquiry).
Cite as 

 (2020)                                                     605

         This court assumes that its earlier cases were cor-
rectly decided. State v. Ciancanelli, 

, 

 (2005). Even so, we remain “willing to reconsider
cases when the legal or factual context has changed in such
a way as to seriously undermine the reasoning or result of
earlier cases.” Farmers Ins. Co. v. Mowry, 

,

 (2011). Such reconsideration does not necessarily
mean that the earlier case was wrong when it was decided.
Instead, “the evolution of the common law may lead this
court to conclude that the earlier case should no longer be
followed.” Mowry, 

-99 n 5.
          This court’s standard of review of a trial court’s
decision on whether to give a requested jury instruction is a
common-law rule.6 Since our decision in Ireland, this court’s
case law concerning the standard of review to be applied to
a trial court ruling declining to give a timely requested jury
instruction has changed.
         As noted earlier, the instructions in ORS 10.095 are
commonly referred to as “statutory” instructions. Earlier
cases decided before Ireland also intermittently referred to
some of those instructions as “cautionary” instructions. Moe
v. Alsop, 

, 

 (1950), overruled in part
on other grounds by Bay Creek Lumber Co. v. Cesla, 

, 

 (1958) (describing the instruction
now contained in ORS 10.095(4) as a “statutory cautionary
instruction”); Fitze v. American-Hawaiian SS. Co., 

, 

 (1941) (examining “all of the caution-
ary instructions contained in [ORS 10.095]”). The “caution-
ary” descriptor was also used to describe other jury instruc-
tions not contained in ORS 10.095.7 The early cases decided
before Ireland almost uniformly describe the standard
of review of a trial court’s decision to give a “cautionary”
     6
       The source of the standard of review that this court applies to a given case
depends on the nature of the case. The relevant standard can come from the
Oregon Constitution, a statute, or common law. See Couey v. Atkins, 

, 

 (2015).
     7
       See Dimitroff v. State Ind. Acc. Com., 

, 

(1957) (instruction that jury had a duty to avoid guessing or speculation); State v.
Peare, 

, 

 (1925) (instruction that jury should not allow
itself to be swayed by passion or prejudice); Scheurmann v. Mathison, 

, 

 (1913) (instruction informing jury to not allow sympathy for the
plaintiff to influence their verdict).
606                                            State v. Payne

instruction—whether statutory or not—as an abuse of dis-
cretion. See Moe, 

; Fitze, 

 (citation
omitted); State v. Peare, 

, 

 (1925);
Scheurmann v. Mathison, 

, 

 (1913).
Those cases, and particularly Fitze, which this court cited
in Ireland, lend support to the holding in Ireland that the
abuse-of-discretion standard of review applied to a trial
court’s decision to give the statutory witness-false-in-part
instruction.
         But as we described, this court no longer reviews
a trial court’s decision to refuse a timely requested jury
instruction for an abuse of discretion. That evolution also
can be seen specifically in the context of the statutory
instructions. Langley, a case from 2000, and Moe, a case
from 1950, illustrate that the standard of review of a trial
court’s refusal to give a requested statutory instruction has
changed. Langley involved a refusal to give accomplice cor-
roboration instructions, including the statutory instruction
contained in ORS 10.095(4), which states in part that “the
testimony of an accomplice ought to be viewed with dis-
trust.” Langley, 

. This court stated and applied
a legal-error standard of review, holding as a legal mat-
ter that the defendant was not entitled to the accomplice
corroboration instructions during the penalty phase of his
aggravated murder trial, because those instructions related
to whether a defendant could be convicted of a crime, not
the appropriate punishment once he was convicted. 

. In contrast, in Moe—which involved part of the same
statutory instruction contained in ORS 10.095(4), without
the additional accomplice corroboration requirement of ORS
136.440—this court applied a discretionary standard of
review. 

.
         This court held in Ireland that a trial court has dis-
cretion to refuse to give the witness-false-in-part instruction
even when the party requesting it correctly points to evi-
dence in the record from which the jury could conclude that
a witness consciously testified falsely regarding a material
matter, with appellate courts limited to reviewing a refusal
for an abuse of discretion. That holding is inconsistent with
our current standard of review and is no longer a correct
statement of the law in Oregon. Accordingly, that part of
Cite as 

 (2020)                                607

Ireland applying an abuse-of-discretion standard of review
is overruled.
         Defendant also argues that we must view the evi-
dence in the light most favorable to him, the requesting
party. We agree with defendant that a trial court and a
reviewing court must view the evidence in the light most
favorable to the party requesting the instruction. See State
v. Ashkins, 

, 

 (2015) (a jury
instruction is “appropriate if it correctly states the law and
is supported by evidence in the record, when the evidence
is viewed in the light most favorable to the party request-
ing the instruction”); State v. Oliphant, 

, 

 (2009) (“When discussing defendants’ requested
instructions, we view the facts in the light most favorable to
defendants.”).
         In summary, a “proper occasion” to give the statu-
tory witness-false-in-part instruction exists when, consid-
ering the testimony and other evidence viewed in the light
most favorable to the party requesting the instruction, the
trial court concludes that sufficient evidence exists for the
jury to decide that at least one witness consciously testi-
fied falsely and that the false testimony concerns a mate-
rial issue. And, we reiterate that those are legal conclusions
and that a reviewing court will apply a legal-error stan-
dard of review to the trial court’s refusal to give a timely
requested and legally correct witness-false-in-part statu-
tory instruction.
B.   Legal Error
        Turning to the facts of this case, we first look at
whether there was sufficient evidence for the jury to decide
that at least one witness consciously testified falsely.
Viewing the evidence in the light most favorable to defen-
dant, the party requesting the instruction, sufficient evi-
dence existed. Indeed, the state agreed in its brief to this
court that “the evidence permits an inference that the [com-
plainant] consciously testified falsely.”
         The complainant was present when defense coun-
sel repeatedly used the phrase “black man” when describing
what she had said to the police. And she thought defense
608                                             State v. Payne

counsel’s use of those words painted her in an unflattering
light; she testified that she “heard [defense counsel] actually
yesterday trying to make [her] sound like [she] was racist.”
The complainant denied using the words “black man” on
multiple occasions. Over the course of cross-examination,
the complainant testified that “[she] did not say it like
that,” that she “[didn’t] remember saying those words,” and
that “those words are not exactly [her] words.” When con-
fronted with the fact that the reporting officer had put those
words in quotes, the complainant maintained that any dis-
crepancy was due to the officer’s error in writing down her
statement. She stated that “if that’s what he wrote then,
that’s different from right now because I didn’t not [sic] say
strong black man,” and that “[i]f that’s how he phrased it,
maybe that’s how he wrote it up.” Considered in the light
most favorable to the defendant, the complainant’s repeated
denials amount to more than an honest mistake, confusion,
or hazy recollection. When viewed as a whole, those state-
ments are an unequivocal denial that she ever referred to
defendant’s race as a reason for why she did not leave the
car, but the reporting officer testified that he directly quoted
the complainant. A jury could credit the officer’s testimony
and conclude that, as opposed to simply forgetting what she
had said to the officer, the complainant had a reason to lie
and consciously testified falsely about her statement.
         The false testimony was also material. Defendant’s
theory of the case was that the complainant had lied about
her reasons for not leaving the car and the entire nature of
the encounter with him to protect her relationship with her
boyfriend and to conform to her mother’s as well as society’s
expectations. We therefore have no problem concluding that
a falsehood pertaining to the complainant’s reasons for not
leaving the car would be material. Because the evidence was
sufficient for the jury to conclude that the complainant had
consciously testified falsely, and that testimony was about
a material issue, we hold that the trial court erred when it
refused to give the witness-false-in-part instruction.
C. Prejudicial Error
        Having concluded that the witness-false-in-part
instruction should have been given in this case, we address
Cite as 

 (2020)                                 609

the state’s alternative argument that the trial court’s failure
to give the instruction constituted harmless error. Under
Article VII (Amended), section 3, of the Oregon Constitution,
we must affirm the judgment below if we determine that
there was “little likelihood that the error affected the ver-
dict[.]” State v. Davis, 

, 

 (2003). To
make that determination, “the court considers the instruc-
tions as a whole and in the context of the evidence and
record at trial, including the parties’ theories of the case
with respect to the various charges and defenses at issue.”
Ashkins, 

.
         The state offers three reasons that any error was
harmless: (1) the jury was adequately instructed on how
to evaluate the credibility of witnesses, (2) the instruction
“demands nothing of the jury and merely conveys a common-
sense principle,” and (3) defendant was not prevented from
arguing that the complainant lied and that the jury should
therefore discount her testimony entirely. For the reasons
discussed below, we conclude that the trial court’s refusal
to give the witness-false-in-part instruction that defendant
requested was not harmless.
         The jurors were instructed that, “[i]n evaluating
each witness’s testimony,” they could consider “[t]he man-
ner in which the witness testified,” “the nature or quality
of the witness’s testimony,” “evidence that contradicts the
testimony of the witness,” and “evidence concerning the
bias, motives, or interests of the witness.” According to the
state, those instructions, coupled with the general instruc-
tions that the jury had the “sole responsibility to make all of
the decisions about the facts in the case” and was required
to “evaluate the evidence to determine how reliable or how
believable that evidence is,” adequately told the jury of its
duty to assess the complainant’s credibility.
         It is true that courts do not need to give requested
instructions that are “merely enlargements upon instruc-
tions given.” Laubach v. Industrial Indemnity Co., 

, 

 (1979). However, the general instructions
did not tell the jury what it could do if it determined that a
witness consciously testified falsely and so did not consti-
tute the equivalent of the witness-false-in-part instruction
610                                            State v. Payne

that defendant requested. Furthermore, if we accepted that
the general instructions served the same function as the
witness-false-in-part instruction, an instruction that the
legislature has decided should be given on all “proper occa-
sions,” there would never be a case in which the failure to
give that instruction could be more than harmless error.
         The state next argues that the witness-false-in-
part instruction merely reiterated common sense and so
would have been of little value to the jury and defendant.
We reject the state’s argument regarding the instruction’s
lack of practical value for jurors generally and as applied in
this case.
         First, the state’s argument is at loggerheads with
ORS 10.095, which reflects a legislative judgment that
we are not free to ignore—that the witness-false-in-part
instruction has sufficient value that it must be given on
“all proper occasions.” Second, the witness-false-in-part
instruction serves an important advisory function because
it informs a jury of its duty to scrutinize a witness’s testi-
mony, undercuts the presumption that sworn testimony is
truthful, and permits the jury to draw an inference that a
willfully false witness who has violated her oath in one par-
ticular may well have done so in others. As the concurring
opinion in Ireland explained, without the instruction, a jury
has “no guide as to the manner in which they may treat the
testimony of one whom they believe to be testifying falsely.”

 (Perry, J., specially concurring).
          And in this case, the instruction was especially
important for defendant. The defense theory was that the
sexual contact was consensual and that the complainant
had falsely reported the contact as nonconsensual. The jury
necessarily needed to decide whether it believed defendant’s
or the complainant’s version of events. An instruction that
informs the jury of its ability to distrust other portions of a
witness’s testimony, if it concludes that the witness testified
falsely, would therefore be important in assisting the jury in
making that determination.
        Finally, the state asserts that defendant “essentially
made a witness-false-in-part argument to the jury” during
closing argument and that the jury could have accepted
Cite as 

 (2020)                                 611

that argument. The Court of Appeals similarly noted that
defendant’s closing argument openly challenged the com-
plainant’s credibility, and it concluded as a result that any
error was harmless. Payne, 

. In response,
defendant argues that (1) this case required jurors to deter-
mine the credibility of defendant and the complainant and
that the jury had to find the complainant credible for the
state to meet its burden of proving defendant’s guilt beyond
a reasonable doubt and (2) the instruction would have pro-
vided concrete information to jurors on how to assess possi-
ble false testimony by the state’s key witness.
        We agree with defendant that closing argument
was not an adequate substitute for the witness-false-in-part
instruction that should have been given. Jury instructions
matter; through instructions, the trial court tells the jury
the law applicable to the case. Ossanna, 

. We
have previously explained that “neither the sufficiency of
the evidence nor the completeness of counsel’s arguments
concerning that evidence is a substitute for the sufficiency of
the instructions.” State v. Brown, 

, 

 (1990). Here, the trial court instructed the jury that the
lawyers’ statements and arguments were not evidence and
that the jury should base its verdict on the evidence. The
defense theory was that the complainant was lying about
the nature of her encounter with defendant, and the instruc-
tion would have provided authority for defendant to argue
that the jury should distrust the complainant’s version of
events. We cannot conclude that there was little likelihood
that the error affected the verdict. Accordingly, the judg-
ment of the circuit court as to Count 1 of the indictment
must be reversed.
        The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed in part, and the case
is remanded to the circuit court for further proceedings.