GILLETTE, J.
The issue in this criminal case is whether a trial court properly may instruct a jury that a witness’s testimony is accomplice testimony and should be viewed with distrust when that testimony does not implicate the defendant in the crime. We hold that the cautionary accomplice-witness instructions should only be given when the “accomplice” testimony implicates the defendant.
FACTS
Defendant had been a truck driver for United Grocers for twenty years. On December 18, 1985, at approximately 3:30 a.m., he made his regular breakfast stop at a Shari’s restaurant in Sherwood. He parked his truck in the restaurant parking lot and left his keys in the truck. Defendant then entered the restaurant and sat at the counter near Chris Spindler, an acquaintance. The two conversed for about ten minutes, then Spindler left. During this conversation, William Bradbrook stole defendant’s truck. Shortly thereafter another truck driver entered the restaurant and informed defendant that his truck was not in the parking lot. Defendant finished his coffee, left the restaurant, and returned 20 minutes later. At that time he reported the missing truck to a deputy sheriff who happened to be eating at the restaurant. The deputy summoned the local police.
When questioned by the police, defendant denied knowing Spindler, but accurately described him. The police recovered the truck the next day and arrested Spindler, Bradbrook, Billy Minor and Joy Jonas for the theft. The first three were convicted of the theft prior to defendant’s trial.
Defendant was also charged with the theft. Spindler testified at defendant’s trial. He admitted that he planned the theft of the truck and that he had known defendant for at least two years, having met him at a tavern known as “Icabod’s.” Based upon conversations at Icabod’s, Spindler knew that defendant regularly stopped at Shari’s for breakfast at 3:30 a.m. He also knew that defendant always left his keys in the truck. Spindler claimed never to have directly discussed his plan to steal defendant’s truck with defendant.
Spindler organized the theft, recruiting Bradbrook to drive the truck and Minor, Jonas, and another person to
unload the truck. The plan called for Spindler to encounter defendant at Shari’s and engage him in conversation while Bradbrook drove away in the truck. Spindler would remain at Shari’s for a few more minutes to ascertain if the truck’s unscheduled departure had been noticed. Meanwhile, Bradbrook was to drive the truck to an isolated location where its contents would be unloaded into two rented U-Haul vans. The theft went according to plan, but two days later a telephone tip led to Spindler’s arrest and the recovery of most of the truck’s contents.
Bradbrook also testified at defendant’s trial. He stated that he did not know of any involvement by defendant in the theft and, in fact, had worried that the truck’s driver would spot him stealing the truck. Minor also testified that he knew of no involvement by defendant. Jonas did not testify because she had died.
Defendant had requested the standard accomplice instructions, but he withdrew the request when the testimony of Spindler, Bradbrook, and Minor failed to implicate him. The trial court gave the instructions over defendant’s objection.
Defendant was convicted of theft in the first degree,
unauthorized use of a motor vehicle,
and criminal conspiracy.
Defendant appealed, and the Court of Appeals reversed.
State v. Simson,
93 Or App 330, 762 P2d 323 (1988). We allowed the State’s petition for review, and now affirm.
THE COURT OF APPEALS OPINIONS
Although the Court of Appeals reversed the trial court, it did so in a two-to-one decision with three separate opinions. Joseph, C. J., writing the lead opinion for the court, held that it was improper to instruct the jury that the three witnesses were accomplices as a matter of law. According to this opinion, the question is not whether the witnesses had been convicted of the crimes in question — obviously, they
had — but whether they “were criminally liable for a crime committed by
defendant. ” State v. Simson, supra,
93 Or App at 335 (emphasis in original). Because defendant’s participation in the crime was denied by the witnesses as well as by defendant himself, the lead opinion held that “there was a factual issue for the jury’s determination as to whether the other evidence showed that, despite their denial, the witnesses were in fact involved with defendant in a crime.”
Id.
Thus, the accomplice instruction improperly told the jury “that [the witnesses] had in fact participated in criminal acts with defendant.”
Id.
at 336. The lead opinion appears to conclude that this amounted to an instruction that defendant, as a matter of law, had participated in criminal acts.
The dissent by Rossman, J., takes a different view. The dissent notes that, according to
State v. Hull,
286 Or 511, 515, 595 P2d 1240 (1979), “the test for determining when a witness should be viewed as an accomplice is whether the witness could be indicted as an accomplice to the offense charged against the defendant.”
State v. Simson, supra,
93 Or App at 337 (Rossman, J., dissenting). Because the witnesses had been indicted and convicted, the dissent would hold that they were accomplices as a matter of law. The dissent accused the majority of confusing “the separate concepts of ‘accomplice to the defendant’ and ‘accomplice witness to a crime.’ ”
Id.
at 338. It is the latter whose testimony must be viewed with distrust, the dissent argued, and Spindler and friends were, as a matter of law, the latter.
The dissent points out what it viewed as a significant logical flaw in the majority’s reasoning: If a jury must first find that a defendant participated in criminal activity with the witness before it applies the accomplice witness instructions, then the instructions will only be applied after the jury has concluded that the defendant is guilty. Clearly, such a construction renders accomplice instructions entirely pointless.
The specially concurring opinion by Buttler, P. J., would hold that it was not only erroneous to instruct that the
witnesses were accomplices as a matter of law, but also that it would be improper, in this case, to give any accomplice instructions at all. ORS 136.440 provides that a defendant may not be convicted based upon the uncorroborated testimony of an accomplice.
However, in this case, the alleged accomplice witnesses’ testimony did not implicate defendant.
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GILLETTE, J.
The issue in this criminal case is whether a trial court properly may instruct a jury that a witness’s testimony is accomplice testimony and should be viewed with distrust when that testimony does not implicate the defendant in the crime. We hold that the cautionary accomplice-witness instructions should only be given when the “accomplice” testimony implicates the defendant.
FACTS
Defendant had been a truck driver for United Grocers for twenty years. On December 18, 1985, at approximately 3:30 a.m., he made his regular breakfast stop at a Shari’s restaurant in Sherwood. He parked his truck in the restaurant parking lot and left his keys in the truck. Defendant then entered the restaurant and sat at the counter near Chris Spindler, an acquaintance. The two conversed for about ten minutes, then Spindler left. During this conversation, William Bradbrook stole defendant’s truck. Shortly thereafter another truck driver entered the restaurant and informed defendant that his truck was not in the parking lot. Defendant finished his coffee, left the restaurant, and returned 20 minutes later. At that time he reported the missing truck to a deputy sheriff who happened to be eating at the restaurant. The deputy summoned the local police.
When questioned by the police, defendant denied knowing Spindler, but accurately described him. The police recovered the truck the next day and arrested Spindler, Bradbrook, Billy Minor and Joy Jonas for the theft. The first three were convicted of the theft prior to defendant’s trial.
Defendant was also charged with the theft. Spindler testified at defendant’s trial. He admitted that he planned the theft of the truck and that he had known defendant for at least two years, having met him at a tavern known as “Icabod’s.” Based upon conversations at Icabod’s, Spindler knew that defendant regularly stopped at Shari’s for breakfast at 3:30 a.m. He also knew that defendant always left his keys in the truck. Spindler claimed never to have directly discussed his plan to steal defendant’s truck with defendant.
Spindler organized the theft, recruiting Bradbrook to drive the truck and Minor, Jonas, and another person to
unload the truck. The plan called for Spindler to encounter defendant at Shari’s and engage him in conversation while Bradbrook drove away in the truck. Spindler would remain at Shari’s for a few more minutes to ascertain if the truck’s unscheduled departure had been noticed. Meanwhile, Bradbrook was to drive the truck to an isolated location where its contents would be unloaded into two rented U-Haul vans. The theft went according to plan, but two days later a telephone tip led to Spindler’s arrest and the recovery of most of the truck’s contents.
Bradbrook also testified at defendant’s trial. He stated that he did not know of any involvement by defendant in the theft and, in fact, had worried that the truck’s driver would spot him stealing the truck. Minor also testified that he knew of no involvement by defendant. Jonas did not testify because she had died.
Defendant had requested the standard accomplice instructions, but he withdrew the request when the testimony of Spindler, Bradbrook, and Minor failed to implicate him. The trial court gave the instructions over defendant’s objection.
Defendant was convicted of theft in the first degree,
unauthorized use of a motor vehicle,
and criminal conspiracy.
Defendant appealed, and the Court of Appeals reversed.
State v. Simson,
93 Or App 330, 762 P2d 323 (1988). We allowed the State’s petition for review, and now affirm.
THE COURT OF APPEALS OPINIONS
Although the Court of Appeals reversed the trial court, it did so in a two-to-one decision with three separate opinions. Joseph, C. J., writing the lead opinion for the court, held that it was improper to instruct the jury that the three witnesses were accomplices as a matter of law. According to this opinion, the question is not whether the witnesses had been convicted of the crimes in question — obviously, they
had — but whether they “were criminally liable for a crime committed by
defendant. ” State v. Simson, supra,
93 Or App at 335 (emphasis in original). Because defendant’s participation in the crime was denied by the witnesses as well as by defendant himself, the lead opinion held that “there was a factual issue for the jury’s determination as to whether the other evidence showed that, despite their denial, the witnesses were in fact involved with defendant in a crime.”
Id.
Thus, the accomplice instruction improperly told the jury “that [the witnesses] had in fact participated in criminal acts with defendant.”
Id.
at 336. The lead opinion appears to conclude that this amounted to an instruction that defendant, as a matter of law, had participated in criminal acts.
The dissent by Rossman, J., takes a different view. The dissent notes that, according to
State v. Hull,
286 Or 511, 515, 595 P2d 1240 (1979), “the test for determining when a witness should be viewed as an accomplice is whether the witness could be indicted as an accomplice to the offense charged against the defendant.”
State v. Simson, supra,
93 Or App at 337 (Rossman, J., dissenting). Because the witnesses had been indicted and convicted, the dissent would hold that they were accomplices as a matter of law. The dissent accused the majority of confusing “the separate concepts of ‘accomplice to the defendant’ and ‘accomplice witness to a crime.’ ”
Id.
at 338. It is the latter whose testimony must be viewed with distrust, the dissent argued, and Spindler and friends were, as a matter of law, the latter.
The dissent points out what it viewed as a significant logical flaw in the majority’s reasoning: If a jury must first find that a defendant participated in criminal activity with the witness before it applies the accomplice witness instructions, then the instructions will only be applied after the jury has concluded that the defendant is guilty. Clearly, such a construction renders accomplice instructions entirely pointless.
The specially concurring opinion by Buttler, P. J., would hold that it was not only erroneous to instruct that the
witnesses were accomplices as a matter of law, but also that it would be improper, in this case, to give any accomplice instructions at all. ORS 136.440 provides that a defendant may not be convicted based upon the uncorroborated testimony of an accomplice.
However, in this case, the alleged accomplice witnesses’ testimony did not implicate defendant. Thus, “their testimony need not be corroborated to convict defendant, because it cannot convict him by itself.”
State v. Simson, supra,
93 Or App at 337 (Buttler, P. J., specially concurring). Because ORS 136.440 is not involved, the concurrence would hold that ORS 10.095(4),
which requires that “on proper occasions” the jury be instructed to view accomplice testimony with distrust, does not apply to the present case. In essence, the concurrence would hold that the accomplice instructions are designed to protect defendants, not the state.
Although all three opinions have merit — and we would be free to adopt a fourth view, if that appeared justified — we are most persuaded by the reasoning of the special concurrence.
ANALYSIS
In this case, the trial court gave several instructions relating to accomplice witnesses.
The core instruction, Uniform Criminal Jury Instruction (hereafter “UCrJI”) No. 1058, arises out of ORS 136.440 and its requirement that accomplice testimony be corroborated before a defendant may be convicted. That instruction has no direct application to this case.
Instructing the jury that they cannot convict defendant upon uncorroborated accomplice testimony makes no sense when the “accomplice” testimony itself does not implicate defendant in the crime. If the state had rested after presenting only the testimony of Spindler, Bradbrook, and Minor, the trial court would have granted a motion for judgment of acquittal — not because the testimony was uncorroborated, but because it did not implicate defendant in the commission of any crime. Even if the judge (and the jury, for that matter) disbelieved the three witnesses’ denial of defendant’s involvement, their testimony would still not suffice to convict defendant. Mere disbelief of a witness’s positive assertion of fact would not constitute evidence to support the finding of a contrary fact. Thus, it was inappropriate to give UCrJI 1058 in this case.
Given this conclusion, it also was inappropriate to give the other accomplice instructions. These other instructions, UCrJI 1059 and 1060(1), (2) and (4), are designed to expand upon the concept of an accomplice in order to make it clear to a jury exactly when corroboration is required.
Even if the other accomplice instructions were not dependent upon the corroboration requirement of ORS 136.440, it was improper in this case to instruct the jury that the witnesses were accomplices as a matter of law. Defendant contends that the accomplice-as-a-matter-of-law instruction amounted to an instruction that defendant had committed the crime along with the witnesses or, in effect, a directed verdict of guilty. We would not go that far. We believe that the jury would understand that the determination of defendant’s guilt was its to make and we doubt that the jury would have understood the instruction to be an order to find the defendant guilty, given the instructions as a whole.
See generally State v. Hull, supra.
The instruction was still erroneous, however. By instructing the jury that the witnesses were accomplices in the crime as a matter of law, the trial court effectively instructed the jury that the crime was in fact committed. This deprived defendant of his right to a jury trial on all elements of the
charge. Normally, the accomplice-as-a-matter-of-law instruction presents no problem, because the instruction is requested by the defendant. A defendant will risk the implication that a crime was committed in order to cast doubt on the veracity of his accusers. But, in this case, it could serve to cast doubt only on the veracity of those whose testimony favored him. Defendant received no trade-off.
Finally, it is important to remember the purpose of the corroboration requirement and its accompanying instructions: criminals may falsely accuse others of their misdeeds in order to minimize their own culpability. This concern is not present when the alleged accomplices are not, in fact, trying to shift blame.*
CONCLUSION
The cautionary instructions based on ORS 10.095(4) and concerning accomplice testimony are designed to warn juries of the danger that one criminal may try to shift the blame for his misdeed onto another person, usually in an effort to lessen the accomplice’s own punishment. Such instructions are inappropriate in a case such as the present one in which none of the “accomplices” implicated the defendant. It was error to have given them.
The decision of the Court of Appeals is affirmed. The case is remanded for a new trial. If the matter is retried, no accomplice testimony instructions are to be given unless a change in the state of the evidence warrants such instructions.
The decision of the Court of Appeals is affirmed. The case is reversed and remanded to the trial court for a new trial.