State v. Hayes

WARREN, P. J.

Defendant appeals his conviction for perjury. ORS 162.065. He assigns error to the trial court’s denial of his motion for judgment of acquittal. He argues that there was insufficient evidence to convict him. We reverse.

The perjury charge arose from defendant’s testimony during his trial for sodomy committed against his grandchild. The state asked defendant on cross-examination whether he had ever been mean to her. Defendant responded: “I’ve never been mean to any of my kids. My grandkids or my kids, never, neither one. No sir.” During defendant’s perjury trial, the state called four of defendant’s children and grandchildren to prove the falsity of his answer. The witnesses testified that they had been sexually abused by defendant. The court found defendant guilty.

Defendant argues that his testimony is not a proper basis for a perjury charge, because a person’s expression of an opinion cannot form the basis of a perjury conviction without proof, beyond a reasonable doubt, that the witness did not hold that opinion, no matter how unreasonable the opinion might be to others. The state contends that it need not prove the falsity of defendant’s opinion and that his beliefs are irrelevant, because defendant’s statement was one of fact. In its view, we can infer that, when defendant said that he had never been “mean,” he meant that he had never sexually molested his granddaughter, which the state proved was not true. We disagree.

ORS 162.065(1) provides:

“A person commits the crime of perjury if the person makes a false sworn statement in regard to a material issue, knowing it to be false.”

ORS 162.055(3) defines a “statement” as

“any representation of fact and includes a representation of opinion, belief or other state of mind where the representation clearly relates to state of mind apart from or in addition to any facts which are the subject of the representation.”

The definition of “statement” in ORS 162.065 was derived from Model Penal Code (MPC) § 241.0(2). See Commentary to Proposed Oregon Criminal Code 84 (1975). MPC explains that “ [a] statement may be so vague or ambiguous as to preclude a satisfactory demonstration that it is false.” MPC § 241.1, comment (b) at 97 (1980). Because the examiner is in the best position to clarify any such ambiguities,

“[i]t is not unfair to require official interrogation to be sufficiently specific so that the verity of the declarant’s statements can be measured against something more objective than a guess as to how he interpreted the question.” MPC § 241.1, comment (b) at 98.

The United States Supreme Court has been even more emphatic in placing the onus of clarification on the examiner. It has held that “[pjrecise questioning is imperative as a predicate for the offense of perjury,” because “a prosecution for perjury is not the sole, or even the primary, safeguard against errant testimony.” Bronston v. United States, 409 US 352, 360, 93 S Ct 595, 34 L Ed 2d 568 (1973). In short, a perjury prosecution may not be based on an inference that a defendant meant one thing when he said another, if the defendant’s response could have been clarified with more precise questioning.

The prosecutor’s question was far from precise. If he had wanted to know if defendant had ever sexually abused his granddaughter, he should have asked that question. Because he did not, the state cannot now endeavor to prove that that is what the question meant and that that was the question that defendant answered.

Even if we could construe defendant’s answer as a statement of belief, we could not uphold his conviction. Although “it is appropriate to permit prosecutions in some situations where the only lie relates to the declarant’s state of mind,” the state must prove that defendant misrepresented his actual belief by the statement. MPC § 241.1, comment (d) at 106. A representation of state of mind constitutes a statement only “where the representation clearly relates to state of mind apart from or in addition to any facts which are the subject of the representation.” ORS 162.055(3). (Emphasis supplied.) A pedophile may not believe that his conduct is “mean” or, even, wrong. Because the state presented no evidence that even remotely suggested that defendant did not sincerely believe that he had not been mean, it failed to prove a misrepresentation.

Reversed.