State v. Villanueva , 316 Or. App. 265 ( 2021 )

265
Submitted on remand from the Oregon Supreme Court October 21, affirmed
December 8, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
ANTONIO VILLANUEVA,
Defendant-Appellant.
Lane County Circuit Court
17CR20229; A165517
501 P3d 1143
On remand from the Oregon Supreme Court, State v.
Villanueva, 368 Or 560, 494 P3d 918 (2021).
Valeri L. Love, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, Deputy Public Defender, Office
of Public Defense Services, filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the briefs for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Affirmed.
266 State v. Villanueva
PER CURIAM
This case is before us on remand from the Supreme
Court “for reconsideration in light of State v. Payne, 366 Or
588, 468 P3d 445 (2020).” State v. Villanueva, 368 Or 560,
494 P3d 918 (2021). We previously affirmed without opinion.
State v. Villanueva, 298 Or App 376, 449 P3d 541 (2019). In
so doing, we rejected defendant’s contention that the trial
court erred in failing to deliver, on defendant’s request, the
witness-false-in-part jury instruction. As directed by the
Supreme Court, we reconsider that ruling in view of Payne.
We affirm.
“In light of Payne, the inquiry for us is whether
the testimony and evidence, viewed in the light most favor-
able to defendant, is legally sufficient to support a finding
that at least one witness testified falsely and, if so, whether
that false testimony concerned a material issue.” State v.
Kinstler, 307 Or App 517, 521, 478 P3d 595 (2020). Further,
“[i]n conducting that inquiry, we focus on the testimony and
evidence identified by defendant as supporting the instruc-
tion.” Id.In this case, defendant points to the testimony of
one witness, Knapp, in support of the contention that the
instruction should have been delivered. During trial, the fol-
lowing testimony was elicited from Knapp:
“Q Have—would you say that you’re addicted to
methamphetamine?
“A I wouldn’t say that. I wouldn’t say I even do meth.
I’d say I’ve been a drug addict since, I don’t know—I don’t
know why this would pertain but—
“Q Well, I just want—
“A I mean, I don’t really go around giving out my per-
sonal information like drug uses or if I’m a drug addict.”
(Emphases added.)
Defendant argues that the italicized portions of
the question and answer are evidence that Knapp testi-
fied falsely. Pointing to Knapp’s earlier acknowledgment of
convictions for possession of methamphetamine, defendant
asserts that Knapp’s claim that “he was not an addict” was
Cite as 316 Or App 265 (2021) 267
“obviously a false claim” in view of his criminal history.
This, according to defendant, means that the trial court
should have delivered the witness-false-in-part instruction.
Having considered in context the testimony identi-
fied by defendant, we disagree that it supports an inference
that the witness testified falsely. At most, it supports an
inference that the witness does not view himself as addicted
to methamphetamine. That is, it appears to express the wit-
ness’s personal—and subjective—opinion of his drug use,
rather than an objectively false statement. Consequently,
the trial court did not err when it declined to deliver the
witness-false-in-part instruction. See, e.g., Kinstler, 307 Or
App at 523 (trial court did not err in declining to deliver
witness-false-in-part instruction where the discrepancies
in testimony identified by the defendant as supporting the
instruction were “of the type that suggest lapses in memory,
differences in perspective, and, at worst, an example of a
witness’s selective choice of words to downplay his potential
role” in the incident that led to criminal charges).
Because the Supreme Court’s remand order does
not call into question our resolution of defendant’s other
assignments of error, we reject those assignments of error
without discussion, as we did before.
Affirmed.