dissenting.
Contrary to the majority, I conclude that the refusal of the trial judge to give the requested instruction was *254within the bounds of the trial court’s discretion and in any event does not justify reversal.
The trial court in declining to give the requested instruction stated his reasoning as follows:
" * * * [A]mong the reasons which the Court had for not giving the instruction complained about here is that the Court felt that to do so might be an indication by the Court that the defendant had made any admissions at all, particularly when the defendant did not testify and the emphasis needed in the case [sic] that the State must prove the guilt of the defendant beyond a reasonable doubt.”
The uniform instruction in question is a substantial elaboration of ORS 17.250(4), which requires the court to instruct the jury "on all proper occasions” that a party’s oral admissions are to be viewed with caution. State v. Bouse, 199 Or 676, 699, 264 P2d 800 (1953) (overruled on other grounds State v. Fischer, 232 Or 558, 376 P2d 418 (1962)). In my view, the requested instruction exceeds what is mandated by the statute and therefore cannot be regarded as a "statutory instruction.” It incorporates a number of reasons why a defendant’s admissions should be viewed with caution, all but one of which (that the alleged admissions may have been taken out of context) are of no consequence in the jury’s determination of this case.
While it is true as the majority states that the failure to give a statutory instruction in a proper case is error, the giving of a requested nonstatutory instruction lies within the discretion of the trial court, and we review to determine whether it abused that discretion. State v. Yates, 239 Or 596, 598-99, 399 P2d 161 (1965); State v. Harwood, 45 Or App 931, 941, 609 P2d 1312 (1980). We find no abuse of discretion here. Defendant offered no alternative explanation for his apologies. The instruction calls upon the jury to speculate as to other possible reasons for the apologies. The real issue in this case is whether the jury believed complainant’s version of events. This determination depends almost entirely on complainant’s credibility, a subject upon which the jury was properly instructed.
Defendant argues that he is entitled to instructions which apprise the jury of his theory of the case so long as *255there is evidence to support it and the requested instructions correctly state the law. State v. Castle, 48 Or App 15, 19, 616 P2d P2d 510 (1980). This rule has no application here because the requested instruction on oral admissions does not deal with defendant’s theory of the case. His theory was simply that he did not do the acts charged and that complainant’s story was false. The requested instruction would merely have cautioned the jury to carefully examine defendant’s alleged apologies, which would have been an instruction on how to evaluate evidence. Although it would have been permissible for the court to have given the instruction, it was not error to refuse to give it.
In summary, the refusal to give the requested instruction was within the trial court’s discretion and does not justify overturning the verdict and granting defendant a new trial.
Richardson, Buttler and Roberts, JJ, all concur in this dissenting opinion.