No. 876 December 4, 2024 591
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JAMES ARTHUR BITZ,
Defendant-Appellant.
Multnomah County Circuit Court
18CR31314; A180190
Kathleen M. Dailey, Judge.
Submitted September 27, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, Deputy Public Defender,
Oregon Public Defense Commission, filed the briefs for
appellant. Jason A. Bitz filed the supplemental brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kate E. Morrow, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, Hellman, Judge, and
Mooney, Senior Judge.
MOONEY, S. J.
Reversed and remanded.
592 State v. Bitz
MOONEY, S. J.
Defendant appeals a judgment of conviction entered
after a jury found him guilty of (1) unlawful use of a weapon
- firearm, ORS 166.220 and ORS 161.610, and (2) felon in
possession of a firearm - firearm, ORS 166.270 and ORS
161.610.1 Those convictions arose out of an altercation that
began when defendant overheard a heated verbal exchange
between his duplex neighbor, R, and her fiancé, C, which
escalated after the fiancé kicked a hole into R’s front door,
and then ended in the adjacent parking area when defendant fired a shotgun. Defendant raises three assignments of
error. We reject both pro se supplemental assignments without discussion. In the remaining assignment, defendant
contends that the trial court erred by giving the witnessfalse-in-part (WFIP) jury instruction because it was not
supported by the evidence. Having reviewed the record, we
conclude that the evidence does not support the inference
that any witness consciously testified falsely, and thus, the
trial court erred by giving the instruction. We also conclude
that the error prejudiced defendant. Accordingly, we reverse
and remand.
I. STANDARD OF REVIEW
We review the trial court’s decision to give the
WFIP instruction for legal error, viewing the evidence “in
the light most favorable to the party requesting the instruction”—here, the state. State v. Payne, 366 Or 588, 606-07,
468 P3d 445 (2020) (overruling “that part of” Ireland v.
Mitchell,
226 Or 286,
359 P2d 894 (1961), that applied “an
abuse-of-discretion standard of review” and holding instead
that whether a proper occasion exists to give the statutory
WFIP instruction is a legal conclusion that is to be reviewed
for legal error); see also State v. Gocan,
315 Or App 222, 227,
500 P3d 85 (2021), rev den,
369 Or 211 (2022) (“The trial
court’s decision whether or not to give the instruction is a
legal conclusion, and, on appeal, we apply a legal-error standard of review.”). We state the facts consistently with that
standard.
1
The jury acquitted defendant of (1) attempted murder - firearm, ORS
163.115 and ORS 161.610, and (2) attempted first-degree assault - firearm, ORS
163.185 and ORS 161.610.
Cite as 336 Or App 591 (2024) 593
II. FACTS
On the night in question, defendant and his fiancé,
K, heard R arguing with C. Defendant, K, and several of their
friends confronted C in the duplex parking lot when C began
kicking R’s front door. They told C to leave, and the situation escalated into a physical altercation that concluded after
defendant fired a gun and C got into his car and drove away.
A surveillance camera appears to have captured the moment
the gun was fired.2 The short video does not include audio.
Witness testimony about the video varies in terms of what it
depicts.
The state charged defendant with attempted murder with a firearm, first-degree attempted assault with a
firearm, unlawful use of a weapon with a firearm, and felon
in possession of a firearm with a firearm. Defendant relied
on the defenses of choice of evils, self-defense, and defense of
others, alleging that C had threatened to run over the group
with his car before defendant fired the gun.
A. C’s Testimony
C testified that he does not recall what happened
because he was intoxicated that night and, additionally, he
suffered a head injury in an unrelated incident that resulted
in memory loss. He was able to confirm that the video showed
him getting into his car, but he could not confirm whether
the video showed defendant holding or shooting a shotgun:
“[THE PROSECUTOR:] I’m going to show you what’s
been admitted into evidence as State’s Exhibit 20. I’m going
to ask you to look up at the screen. You see it?
“[C:] Yeah.
“[THE PROSECUTOR:] Is that you?
“[C:] Yes.
“[THE PROSECUTOR:] Do you remember this night?
“[C:] No.
2
At the time the parties filed their briefs, the trial court had been unable
to locate the surveillance footage, which was admitted into evidence as State’s
Exhibit 20. It was subsequently located and is now a part of the appellate record.
594 State v. Bitz
“[THE PROSECUTOR:] At all or—not at all or just a
little?
“[C:] Not at all.
“[THE PROSECUTOR:] Is that your car you’re getting
in?
“[C:] Yeah.
“[THE PROSECUTOR:] Did someone just shoot at?
“[C:] I—
“[THE PROSECUTOR:] Want to look at it again?
“[C:] I didn’t see nothing.
“[THE PROSECUTOR:] Let’s see. Watch it again.
“(Video plays without audio)
“[C:] I think there’s like smoke or something, but I
don’t know.
“[THE PROSECUTOR:] You don’t see a guy there
holding a shotgun in the back?
“[C:] I don’t—I can’t—it’s really dark. I can’t really see
nothing, but I did see smoke or something. That’s all.”
B. R’s Testimony
R testified, as relevant:
“[THE PROSECUTOR:] [R], do you know a person
named [C]?
“[R:] Yes.
“[THE PROSECUTOR:] Who is that?
“[R:] My fiancé.
“[PROSECUTOR:] Okay. Is he currently your fiancé or
formerly your fiancé?
“[R:] Currently my fiancé.
“[PROSECUTOR:] Were you in a relationship with
him in May of 2018?
“[R:] Yes.
“…
Cite as 336 Or App 591 (2024) 595
“[PROSECUTOR:] Okay. So, what happened? If you
could take the jurors through it, what happened leading up
to him getting shot at, and what did you see? If it’s helpful
for me to ask an easier—break it down, I can do that, too.
“[R:] [C] came to my house. He came back. He was
upset so he left for a little while and he came back and
we were arguing just about where he went. And then the
neighbors came over and they were trying to tell him to
leave and then things just escalated and he got shot at.
“[PROSECUTOR:] Okay. Did he kick your door?
“[R:] He did.
“…
“[PROSECUTOR:] All right. But once the neighbors
got involved, what did that look like? …
“[R:] … They were just standing around my car and
kind of like—I felt like they were kind of circling around
us. Like, to where I was in a corner.
“…
“[PROSECUTOR:] And is this a video that you’ve seen
earlier?
“[R:] Yes.
“[PROSECUTOR:] And when you saw this video, did
you recognize that as a fair and accurate representation of
what went on that night?
“[R:] Yes.
“…
“[PROSECUTOR:] I’m showing you Exhibit 20 now.
Is that [C] walking back from [defendant’s] apartment and
someone pointing at him?
“[R:] Yes.
“[PROSECUTOR:] What just happened?
“[R:] His car was shot at.
“…
“[PROSECUTOR:] Explain and describe for the jury
what you saw with detail, please.
596 State v. Bitz
“[R:] I saw the—there was like two other guys I think,
or there was a group of people outside and they were getting in an altercation and I remember [C] had got in an
altercation with [defendant] last and [defendant] had ran
into his house and I thought it was over. I thought it was
done, and then he came outside with a gun.
“…
“[DEFENSE COUNSEL:] Okay. So, the two of you
were on the front porch and that’s, I think, when you said
the neighbors came over and began getting involved; is that
right?
“[R:] Yeah.
“[DEFENSE COUNSEL:] When the neighbors confronted you and [C], did you stay kind of on your porch
throughout those proceedings?
“[R:] Yes.
“…
“[DEFENSE COUNSEL:] Okay. It turned physical
because [C] attacked one of those neighbors; is that correct?
“[R:] No.
“[DEFENSE COUNSEL:] He didn’t attack one of the
neighbors?
“[R: No.
“[DEFENSE COUNSEL:] Never punched him.
“[R:] They got in a fight.
“[DEFENSE COUNSEL:] They got in a fight? Okay.
Who initiated the physical contact of that fight?
“[R:] Well, they both fought.
“…
“[DEFENSE COUNSEL:] Okay. So, it was a mutual
combat?
“[R:] Yes.”
C. K’s Testimony
K testified, as relevant:
Cite as 336 Or App 591 (2024) 597
“[DEFENSE COUNSEL:] Okay. When did you first
become aware that there was some sort of altercation or
something out of the ordinary was happening?
“[K:] When I could hear [R] yelling for help.
“…
“[DEFENSE COUNSEL:] Okay. What was she saying?
“[K:] She was saying, help, call the police, he’s kicking
in my door.
“…
“[DEFENSE COUNSEL:] = Okay. Is your memory
perfect as to what exactly occurred on that occasion?
“[K:] No.
“…
“[K:] I recall a lot of it, yes.
“[DEFENSE COUNSEL:] So, what happened after
you came outside and you go and respond to [R]’s calls for
help?
“[K:] [A neighbor] and I got closer. [The neighbor] was
telling [C] that he should probably just leave.
“…
“[DEFENSE COUNSEL:] And what happened when
[C] went to your door?
“[K:] He started hitting [defendant].
“…
“[DEFENSE COUNSEL:] Okay. Had [defendant] said
anything to [C] at that point?
“[K:] No.
“…
“[DEFENSE COUNSEL:] Okay. So, he walked from
the area in front of the entryway of your residence to his
car; is that correct?
“[K:] Yes.
“[DEFENSE COUNSEL:] Did you follow him?
598 State v. Bitz
“[K:] Yes, I did.
“[DEFENSE COUNSEL:] Were you pointing at him as
you followed him?
“[K:] Yes, I was.
“[DEFENSE COUNSEL:] Now you’ve watched videos
that are surveillance footage of this incident that were captured; is that correct?
“[K:] Yes.
“[DEFENSE COUNSEL:] And in that—one of those
videos, you see a woman pointing a finger at [C] as he’s
walking away somewhat following after him; is that
correct?
“[K:] Yes.
“[DEFENSE COUNSEL:] Is that you?
“[K:] Yes, it is.
“[DEFENSE COUNSEL:] Did [C] threaten anybody
with anything?
“[K:] Yes. He threatened to run us all over with his
car.
“…
“[DEFENSE COUNSEL:] You heard a shot shortly
thereafter that; is that correct?
“[K:] Yes.”
The state played the video to K during its crossexamination of her. K testified that the video showed her following C through the parking lot, while pointing her finger
at him, and then recoiling when the shot was fired:
“[THE PROSECUTOR:] Okay. So, you’re still pointing.
This guy is getting in his car. You’re still pointing at him.
Okay. You’re still standing there watching him. There’s a
gunshot. Now you didn’t know that [ ] defendant was going
to shoot that gun, did you? You can see him right there.
“[K:] No, I didn’t know.
“[THE PROSECUTOR:] You see him right there,
right?
Cite as 336 Or App 591 (2024) 599
“[K:] Yes.
“[THE PROSECUTOR:] Okay. And that’s him holding
the shotgun, isn’t it?
“[K:] Holding something, yes.
“[THE PROSECUTOR:] Well, holding something.
Let’s talk about that. Did you just flinch in this video?
“[K:] I did.
“[THE PROSECUTOR:] Did you hear a loud boom?
“[K:] Yes, I did.
“[THE PROSECUTOR:] Did you turn around and look
and see a shotgun? It looks like you turned around?
“[K:] I’m not facing [ ] defendant.
“…
“[THE PROSECUTOR:] You started taking a step
towards [ ] defendant, didn’t you?
“[K:] Yes.
“[THE PROSECUTOR:] And are you still going to tell
this jury you didn’t see [defendant] holding that shotgun
that just got shot past your head?
“[K:] Under the circumstances and the stress, no, I did
not.
“[THE PROSECUTOR:] What does that mean? You
don’t remember or just didn’t see it?
“[K:] As far as I know, I didn’t see it.
“[THE PROSECUTOR:] What does that mean, ‘as far
as I know’?
“[K:] I don’t know. I didn’t see it.”
D. Defendant’s Theory and the State’s Argument
Defendant claimed that he acted to defend himself
and others by firing a warning shot at C’s car after C threatened to run people over while he was walking to his vehicle. K’s testimony and her credibility were thus especially
important to his case, a fact that the prosecutor highlighted
in the state’s rebuttal argument during closing:
600 State v. Bitz
“[K] testified. The judge has instructed you when you
look at someone’s testimony, do you believe them? Should
you discount some of their testimony? Should you say, I
should be very careful with this?
“When you have a witness who is the fiancé of the person on trial … and when she sees [the video] put up, I’m
not sure if that’s a shotgun; I mean, I’m not sure that I see
him holding that; I’m not sure that’s a shotgun blast that
just went by my head. I was scared. It was a long time ago.
That’s a lie. She loves the defendant. She wants to protect
him. That makes sense that she would lie for him, but you
should discount her testimony.
“And that leaves us with who comes up with the idea
that [C] is going to get in that car and mow everybody
down? … [D]efendant makes that statement to the detectives early on, and then suddenly [K] is here saying it today.
No report of her saying it earlier and it comes up—when it
comes to the investigation, say what’s going on, no, that’s
now, three years later. That’s when that’s coming out.
“This—the person who remembers that clearly, but
doesn’t remember the shotgun going off just a couple feet
behind her head and blowing a hole into that car. Doesn’t
remember turning around, seeing [ ] defendant clearly
holding that shotgun. That’s what normal—normal people
do that. You hear a shotgun, you turn around, see where
it came from, your loved one is holding it. You remember
that.”
The trial court gave the WFIP instruction over
defendant’s objection.
III. ANALYSIS
The WFIP instruction 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
Cite as 336 Or App 591 (2024) 601
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.
ORS 10.095 requires a trial court to give the WFIP
instruction on all proper occasions:
“[A] ‘proper occasion’ to give the statutory [WFIP] instruction exists when, considering 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 testified falsely and that the false
testimony concerns a material issue.”
Payne, 366 Or at 607. “[T]he [WFIP] instruction is not disfavored in Oregon. The mandate of ORS 10.095 is that the
instruction be given on ‘all proper occasions.’ ”
Id. at 600 n 3.
To be clear, the WFIP instruction “is not intended
to assist the jury in determining whether a witness has testified falsely in the first instance.” State v. Labossiere, 307
Or App 560, 569,
477 P3d 1 (2020). It is instead an instruction
that assists a jury to evaluate a witness’s testimony when
there is sufficient evidence for the jury to conclude first that
the witness consciously gave false testimony. In other words,
when the evidence would support that a witness lied under
oath, ORS 10.095 requires the court to instruct the jury that
it may, but is not required, to distrust other testimony given
by that witness. “Evidence of a witness’s false testimony
must amount to more than an honest mistake, confusion, or
hazy recollection.” State v. Daly,
308 Or App 74, 79,
479 P3d
335 (2020) (internal quotation marks omitted). The fact that
two witnesses testify differently about the same event is not
enough, without more, to support the inference that one of
them lied under oath. The differences in their testimony
may simply be due to the amount of precision each uses to
describe the event, or it may be due to “differences in [their]
perspective[s].” State v. Hall,
324 Or App 802, 811-12,
526
P3d 815, rev den,
371 Or 476 (2023). As we have said, “[w]hen
two witnesses describe an event, there will nearly always be
602 State v. Bitz
inconsistencies in their accounts[,]” which “are not usually,
in and of themselves, indicative of conscious falsity.” State v.
Walker,
291 Or App 188, 194,
419 P3d 794 (2018).
By contrast, evidence may be sufficient to support
the inference that a witness lied under oath when that witness, being sworn to tell the truth, unequivocally denies
that he or she made a prior statement, or when two witnesses offer entirely incompatible testimony. See Payne, 366
Or at 608 (concluding that the evidence was sufficient for a
jury to determine that the complaining witness had testified falsely after she repeatedly and unequivocally denied,
in sworn testimony, that she had referred to the defendant’s
race in her prior statements to the police, when the police
officer to whom she spoke testified that the witness had, in
fact, referred to the defendant’s race in her statements to
him); see also Daly,
308 Or App at 80-81 (concluding that
the evidence was sufficient for a jury to determine that one
of the witnesses had testified falsely where two witnesses
gave contradictory testimony about whether one witness
had threatened the other witness with physical harm if she
testified).
Here, we conclude that, even viewing the evidence
in the light most favorable to the state, the evidence does
not support the inference that any witness consciously gave
false testimony. C testified that he could not recall the
incident, and he gave intoxication and a subsequent head
injury as the reasons for his lack of memory. There is no
evidence that C lied under oath about his inability to recall
the events in question, or even that he had a reason to do so.
The record likewise does not support the state’s view that
the respective testimonial accounts of the key events given
by R and K were so incompatible on the question of who
initiated the physical altercation between defendant and C
that the jury could reasonably infer that one of them must
have given false testimony on that point. The discrepancies
between K’s testimony and R’s testimony certainly suggest
that they have different perspectives about what happened
that night. That they experienced the events from different
vantage points is clear from the video itself—K is walking
closely behind C while R remains near her car and the front
Cite as 336 Or App 591 (2024) 603
porch. Their respective accounts of what they saw and heard
as the event unfolded makes sense given their different perspectives. But one cannot make the leap from that to the
intentional giving of false testimony on a key issue without
the aid and assistance of speculation.
And finally, K’s testimony that she did not see the
gun even after hearing a shot, and then immediately turning and walking toward defendant, does not support an
inference that she lied under oath about whether she witnessed defendant in possession of a firearm. At most, the
evidence suggests that the altercation was chaotic and confusing. And even if we could imagine that a video clearly
depicting defendant holding and firing a gun with K turning toward him just at or after that moment might suggest
that K’s testimony that she did not see defendant with a gun
was not truthful, that is not the state of the record before us.
The surveillance footage is dark and of low technical quality. Neither C nor R contradicted K’s testimony, and no prior
statements were offered to contradict K’s testimony that,
in light of the chaos in the parking lot, she did not see the
shotgun. Given that lack of evidentiary support, it was legal
error for the trial court to give the WFIP instruction.
We must now assess the likelihood that the instruction, given in error, “affected the verdict.” State v. Davis, 336
Or 19, 32,
77 P3d 1111 (2003). If it did, then we must reverse
the resulting convictions. If it did not, then we are obliged
to affirm those convictions. Or Const, Art VII (Amended),
§ 3.3 As we assess the likelihood that the giving of the WFIP
instruction to the jurors affected their verdict, we are to
“consider[ ] the instructions as a whole and in the context
3
Article VII (Amended), Section 3, of the Oregon Constitution provides, as
relevant:
“If the supreme court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such
as should have been rendered in the case, such judgment shall be affirmed,
notwithstanding any error committed during the trial; or if, in any respect, the
judgment appealed from should be changed, and the supreme court shall be
of opinion that it can determine what judgment should have been entered in
the court below, it shall direct such judgment to be entered in the same manner and with like effect as decrees are now entered in equity cases on appeal
to the supreme court. …”
(Emphasis added.)
604 State v. Bitz
of the evidence and record at trial, including the parties’
theories of the case with respect to the various charges and
defenses at issue.” Payne, 366 Or at 609 (internal quotation
marks omitted).
We first reject the state’s contention that because
the WFIP instruction was material only to the charges
on which defendant was acquitted, attempted murder and
first-degree assault, any error in giving that instruction
was harmless. In the state’s view, because defendant admitted to shooting the firearm and stipulated to having a prior
felony conviction, the elements of the two crimes of which
he was convicted “were not disputed by the testimony” of
any witness and, therefore, defendant was not prejudiced
by the instruction. However, the state’s view is based on an
incorrect statement of the law, and we reject it. Self-defense
applies to both crimes of conviction. State v. Mickels, 330
Or App 633, 637-38,
544 P3d 446 (2024) (holding that “all
crimes are subject to justification defenses unless an exception applies,” and that the firearm enhancement in ORS
161.610(2) “is an element of a new, aggravated crime” of
felon in possession of a firearm with a firearm, and the state
must disprove a justification defense raised by a defendant);
State v. Strickland,
303 Or App 240, 242, 244-45,
463 P3d
537, rev den,
366 Or 827 (2020), cert den, ___ US ___,
141
S Ct 1517 (2021) (reviewing the relevancy of evidence to the
defendant’s claim of self-defense, raised as a justification
defense against multiple charges, including unlawful use of
a weapon).
Moving to whether it is likely that the WFIP instruction, given in error, affected the verdict, we conclude that it
was. We note that unlike many cases involving the WFIP
instruction, it was the state, not defendant, who requested
the instruction here, with defendant assigning error to the
giving of the instruction, not to the refusal to give it. Thus,
we are not faced with a situation where the jury was deprived
of an instruction that the evidence actually supported and
that might assist the jury in evaluating it. We are instead
faced with a situation where the jury was given an otherwise proper instruction that did not apply to the case before
it. The risk of giving such an instruction is that simply by
Cite as 336 Or App 591 (2024) 605
giving it, the jury may speculate about why it was given,
resulting in “mischief in the jury room[,]” especially when
it is “given abstractly[ ]”—meaning without support in the
record. Payne,
366 Or at 600 n 3 (internal quotation marks
omitted). We acknowledge that we have rejected the argument that the WFIP instruction is an inherently improper
comment on the evidence. See State v. Zelinka,
130 Or App
464, 477 n 14,
882 P2d 624 (1994), rev den,
320 Or 508 (1995)
(rejecting argument that prior version of the WFIP instruction, which provided that a witness who lies in part “is likely
to lie in other parts” of their testimony, was an improper
comment on the evidence). But on this record, we cannot say
that there is little likelihood the error affected the verdict,
particularly in light of the fact that the prosecutor affirmatively drew the jury’s attention to that instruction in his
closing argument and he urged the jury to “discount [K’s]
testimony” on the basis of that instruction.
The absence of evidence supporting that any witness consciously gave false testimony rendered the WFIP
instruction useless to the jurors. The prosecutor’s express
reliance on the instruction likely impacted the jury’s deliberations and verdict. Under those circumstances, the Oregon
Constitution obligates us to reverse defendant’s convictions
and remand for further proceedings.
Reversed and remanded.
