party requesting instruction in Oregon

2024ORS 10.095 requires a trial court to give the WFIP instruction on all proper occasions: “[A] ‘proper occasion’ to give the statutory [WFIP] instruc- tion 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 dis- favored in Oregon.

2024“WITNESS FALSE IN PART” INSTRUCTION We turn next to defendant’s fifth assignment of error, in which he challenges the trial court’s refusal to give a “witness false in part” jury instruction.1 ORS 10.095(3)2 requires that instruction when, “viewing the evidence in the light most favorable to the party requesting the instruction, the evidence is sufficient ‘for the jury to decide that at least one witness consciously testified falsely’ concerning ‘a mate- rial issue.’ ” State v. Howard, 325 Or App 696, 714 , 529 P3d 247 , rev den, 371 Or 333 (2023) (quoting State v. Payne, 366 Or 588, 607 , 468

2025Therefore, the less-satisfactory evidence instruction must be supported by a showing that (1) the evidence the state did not present was reasonably available, and (2) the evidence was stronger than other evidence the state offered.” Copeland, 324 Or App at 826 (internal citation and quota- tion marks omitted).

2025Therefore, the less-satisfactory evidence instruction must be supported by a showing that (1) the evidence the state did not present was reasonably available, and (2) the evidence was stronger than other evidence the state offered.” Copeland, 324 Or App at 826 (internal citation and quota- tion marks omitted).

2022“The party requesting an instruction is prejudiced if the trial court’s failure to give the requested instruction proba- bly created an erroneous impression of the law in the minds of the members of the jury, and if that erroneous impression may have affected the outcome of the case.” Hernandez v. Barbo Machinery Co., 327 Or 99, 106-07 , 957 P2d 147 (1998).

2022“The party requesting an instruction is prejudiced if the trial court’s failure to give the requested instruction proba- bly created an erroneous impression of the law in the minds of the members of the jury, and if that erroneous impression may have affected the outcome of the case.” Hernandez v. Barbo Machinery Co., 327 Or 99, 106-07 , 957 P2d 147 (1998).

2025An instruction is proper if it “correctly states the law and is supported by evidence in the record, when the evidence is viewed in the light most favor- able to the party requesting the instruction.” Id.

2025An instruction is proper if it “correctly states the law and is supported by evidence in the record, when the evidence is viewed in the light most favor- able to the party requesting the instruction.” Id.

2016State v. Ashkins, 357 Or 642, 648 , 357 P3d 490 (2015) (whether a trial court errs by failing to give a jury concurrence instruction when the state has not elected a theory is a question of law); State v. Oliphant, 347 Or 175, 178 , 218 P3d 1281 (2009) (generally, a jury instruction is appropriate if it correctly states the law and is supported by evidence in the record, when the evidence supporting the giving of the instruction is viewed in the light most favorable to the party requesting the instruction).

2016State v. Ashkins, 357 Or 642, 648 , 357 P3d 490 (2015) (whether a trial court errs by failing to give a jury concurrence instruction when the state has not elected a theory is a question of law); State v. Oliphant, 347 Or 175, 178 , 218 P3d 1281 (2009) (generally, a jury instruction is appropriate if it correctly states the law and is supported by evidence in the record, when the evidence supporting the giving of the instruction is viewed in the light most favorable to the party requesting the instruction).

2005Id. at 252; see also, e.g., Beall Transport Equipment Co. v. Southern Pacific, 186 Or App 696, 703 , 64 P3d 1193 , adh’d to as clarified, 187 Or App 472 , 68 P3d 259 (2003).

2005Id. at 252; see also, e.g., Beall Transport Equipment Co. v. Southern Pacific, 186 Or App 696, 703 , 64 P3d 1193 , adh’d to as clarified, 187 Or App 472 , 68 P3d 259 (2003).

2000Whaley’s foundational requirement is explicit: “The party requesting the instruction must show, and the court must find, that [the] other evidence was reasonably available * * 44 Or App at 543-44 (emphasis added).

2000The proper occasion for the instruction is a situation where the basis for the instruction is found in the evidence. * * * The party requesting the instruction must show, and the court must find, that other evidence was reasonably available on a fact in issue and that there is a basis for the jury to conclude the other evidence is stronger and more satisfactory than the evidence offered.” 44 Or App at 543-44 (citations omitted; emphasis added).

2026Cite as 349 Or App 232 (2026) 235 conflicts in the evidence; therefore, we are entitled to state as fact that which there was evidence to support.”); Dosanjh v. Namaste Indian Restaurant, LLC, 272 Or App 87, 91 , 353 P3d 1243 (2015) (“We view the evidence supporting the giv- ing of an instruction in the light most favorable to the party requesting the instruction and, given that light, determine as a matter of law if the instructional ruling was correct.”).

2026Cite as 349 Or App 232 (2026) 235 conflicts in the evidence; therefore, we are entitled to state as fact that which there was evidence to support.”); Dosanjh v. Namaste Indian Restaurant, LLC, 272 Or App 87, 91 , 353 P3d 1243 (2015) (“We view the evidence supporting the giv- ing of an instruction in the light most favorable to the party requesting the instruction and, given that light, determine as a matter of law if the instructional ruling was correct.”).

2016See Purdy, 355 Or at 225-27 (explaining circumstances under which the refusal to give a requested instruction may “substantially affect” the rights of the party requesting the instruction).

2016“Generally speaking, an 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 requesting the instruction.” State v. Ashkins, 357 Or 642, 648 , 357 P3d 490 (2015); see State v. Wolf, 260 Or App 414, 416-17 , 317 P3d 377 (2013) (“When a defendant challenges a trial court’s refusal to give a requested jury instruction, we view the facts in the light most favorable to giving that instruction.”).

2016“Generally speaking, an 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 requesting the instruction.” State v. Ashkins, 357 Or 642, 648 , 357 P3d 490 (2015); see State v. Wolf, 260 Or App 414, 416-17 , 317 P3d 377 (2013) (“When a defendant challenges a trial court’s refusal to give a requested jury instruction, we view the facts in the light most favorable to giving that instruction.”).

2014See Ailes, 312 Or at 382 (stating that an appellate court “must exercise its discretion to consider or not to consider the error”); see also Hernandez v. Barbo Machinery Co., 327 Or 99, 106 , 957 P2d 147 (1998) (instructional error “requires reversal only if the jury instructions given by the trial court, considered as a whole, cause prejudice to the party requesting the instruction”).

2014In the context of federal mail fraud and bank fraud, the materiality of a fraudulent statement turns on whether “it has a natural tendency to influence, or [is] capable of influencing, the decision of the decisionmaking body to which it was addressed.” Neder, 527 US at 16 (internal quotation marks omitted; brackets in original); see also Ninth Circuit Model Jury Instruction 8.127 (“In order for the defendant to be found guilty of [bank fraud in violation of 18 USC section 1344 (2)], the government must prove * * * beyond a reasonable doubt *** the statements or promises were material; that is,

2007See State v. Marsh, 186 Or App 612, 614 , 64 P3d 1141 (2003).

2007See State v. Marsh, 186 Or App 612, 614 , 64 P3d 1141 (2003).

2005Id. at 252; see also, e.g., Beall Transport Equipment Co. v. Southern Pacific, 186 Or App 696, 703 , 64 P3d 1193 , adh’d to as clarified, 187 Or App 472 , 68 P3d 259 (2003).

2005Id. at 252; see also, e.g., Beall Transport Equipment Co. v. Southern Pacific, 186 Or App 696, 703 , 64 P3d 1193 , adh’d to as clarified, 187 Or App 472 , 68 P3d 259 (2003).