Bruce is thus an example of the second situation, because the witness did not claim to have lost her memory of the underlying events. The state and the concurrence also rely on State v. Van Gorder, 56 Or. App. 83, 641 P.2d 584, rev. denied 293 Or. 146 (1982), in which the defendant was indicted for manslaughter as the result of the death of a person who was observing the defendant and another person, Nilsen, participate in a game of Russian roulette. Nilsen, as the only survivor of the events other than the defendant, was apparently the state's primary witness. On cross-examination, the defendant attempted to impeach Nilsen by showing that he had previously made statements that, the defense said, were inconsistent with his trial testimony.
Defendant shot and killed him. In defendant's third assignment he argues that the court erred in not giving a jury instruction that we held should have been given in State v. Van Gorder, 56 Or. App. 83, 641 P.2d 584, rev den 293 Or. 146 (1982). In Van Gorder the defendant and another person were playing Russian roulette in the front seat of a car.
Defendant's conduct leading up to the car crash was not an "indirect or remote cause" of the accident. State v. Van Gorder, 56 Or.App. 83, 88, 641 P.2d 584, rev den, 293 Or. 146 (1982). Evidence about defendant's driving around the time of the car crash is relevant to defendant's state of mind at the time of the collision, i.e., whether he was being criminally negligent when the crash occurred.
547, 553-59 (1864). See also State v. VanGorder, 56 Or. App. 83, 89, 641 P.2d 584, 587 (1982); People v. Baca, 633 P.2d 528, 529 (Colo. App. 1981). All inconsistent portions of a prior written statement are admissible for impeachment purposes.
He relies on State v. Boots, 308 Or. 371, 780 P.2d 725 (1989), and argues that, under the court's instruction, the jury might not have found unanimously that he committed any particular act that constituted menacing. Rather than request a complete jury instruction, see State v. Van Gorder, 56 Or. App. 83, 87, 641 P.2d 584, rev den 293 Or. 146 (1982), defendant requested that the court fill in the blank in this proposed instruction: "A person commits the crime of menacing if, by word or conduct, he intentionally attempts to place another in fear of imminent serious physical injury.