Antoine v. Taylor

Decision Date24 November 2021
Docket NumberCC CV151728 (SC S067870)
Citation499 P.3d 48,368 Or. 760
Parties Jeremy Emil ANTOINE, Petitioner on Review, v. Jeri TAYLOR, Superintendent, Eastern Oregon Correctional Institution, Respondent on Review.
CourtOregon Supreme Court

Lindsey Burrows, O'Connor Weber LLC, Portland, argued the cause and filed the briefs for petitioner on review.

Doug Petrina, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson, and Garrett, Justices.**


This is a post-conviction case in which petitioner claims that his trial counsel provided inadequate assistance. At petitioner's criminal trial for multiple counts of first-degree sexual abuse and first-degree sodomy, his counsel raised a set of challenges to the validity of the indictment and to the manner in which the case had been charged. Counsel argued that the indictment failed to provide adequate notice of the basis for the charges against petitioner and otherwise was defective. Petitioner was convicted and, on appeal, the Court of Appeals affirmed his convictions. Although the Court of Appeals rejected some of petitioner's challenges to the indictment on the merits, it held that petitioner's claims about inadequate notice should not have been raised in a demurrer and, instead, that petitioner "could have moved to discover the state's election of the specific criminal acts that the state would prosecute at trial, in time for [him] to tailor his defense to those specific incidents." State v. Antoine , 269 Or. App. 66, 79, 344 P.3d 69 (2015), rev. den. , 357 Or. 324, 354 P.3d 696 (2015) ( Antoine I ).

Petitioner later filed this post-conviction challenge, alleging that trial counsel provided inadequate assistance by failing to move for a pretrial election. The post-conviction court granted relief, but the Court of Appeals reversed that decision, holding that trial counsel had not performed deficiently, given the state of the law at the time of petitioner's trial. Antoine v. Taylor , 303 Or. App. 485, 499, 465 P.3d 238 (2020) ( Antoine II ). We allowed review and now affirm the decision of the Court of Appeals.

A. Trial Proceedings

In 2010, petitioner was charged with four counts of first-degree sodomy, ORS 163.405(1)(b) ; four counts of first-degree sexual abuse, ORS 163.427(1)(a)(A) ; and one count of furnishing sexually explicit material to a minor, former ORS 167.054 (2009), repealed by Or Laws 2011, ch. 681, § 10. The victim of those offenses was the child of petitioner's former girlfriend, with whom petitioner had lived for approximately two years.

The indictment was worded as follows. The first count—a sodomy charge—alleged that "[t]he defendant, on or between September 1, 2006 and October 1, 2008, in Washington County, Oregon, did unlawfully and knowingly have deviate sexual intercourse with [the victim], a child under 12 years of age." The other three sodomy charges—counts two, three, and four—used identical text but specified that they each referred to "a separate act and transaction from that alleged" in the prior counts.

The four counts of sexual abuse alleged "[t]hat as a separate act and transaction from that alleged in [the prior counts]: The defendant, on or between September 1, 2006 and October 1, 2008, in Washington County, Oregon, did unlawfully and knowingly subject [the victim], a child under 14 years of age, to sexual contact by touching [the victim's] genitalia, a sexual and intimate part of the child."

The final count alleged "[t]hat as a separate act and transaction from that alleged in Counts 1 to 8: The defendant, on or between September 1, 2006 and October 1, 2008, in Washington County, Oregon, did unlawfully and intentionally furnish and permit [the victim], a child, to view sexually explicit material, defendant knowing that the material was sexually explicit material."

Petitioner's trial counsel demurred to the indictment in July 2010. He argued that the indictment violated applicable statutes and several provisions of the Oregon and United States Constitutions because it failed to provide adequate notice and protection from double jeopardy. He stated that "discovery reveals that there are inconsistent statements throughout as to when or where an act is alleged to have happened and there appear to be some unknown amount of times that it is alleged to have happened." (Footnote omitted.) At a hearing on the demurrer, defense counsel argued that the offenses needed to be pleaded with more specificity and that such a substantive change could only be accomplished by resubmission to the grand jury, rather than by election or additional discovery.

The state argued that the indictment was sufficiently definite, that the inconsistencies in discovery were not significant, and that any issue would be resolved through an election at the close of the state's case.

The trial court informed counsel that it would take the issue under advisement and issue a short opinion. The court added that it would need to review the discovery in order to evaluate the parties’ arguments. The parties agreed to provide the relevant portions of the discovery material to the trial court.

On January 13, 2011, the trial court sent a letter opinion to the parties, overruling petitioner's demurrer. The trial court noted that the police reports relating to the sodomy and sex abuse charges were "relatively brief and manageable" and concluded that they provided sufficient notice. However, the trial court made an additional ruling that,

"[i]n order to safeguard the constitutional rights of the accused, it is imperative that the petit jury base a finding of guilt on the same conduct that the grand jury has based its probable cause determination. Therefore, when the prosecution makes its election during the course of trial, it must only choose to rely upon factual incidents relied upon by the grand jury in returning the indictment."

(Internal citation omitted.)

Based on that ruling, trial counsel filed another motion, seeking access to the grand jury notes. He argued that he needed to have access to those notes in order to know which factual incidents were the basis for the charges. The trial court ruled that petitioner's motion was premature, as the issue of whether the state's election corresponded to the grand jury's findings would not arise until the state made the election, so it delayed ruling on the motion.

Trial began in March 2011, before a different judge. Before the jury was empaneled, petitioner's trial counsel again raised the grand jury notes issue with the trial court. Trial counsel reported that the prosecutor had recently sent some new statements from the victim, which contained inconsistencies. Trial counsel argued that grand jury notes were necessary in order to cross-examine the witnesses and to evaluate whether the state's election corresponded to what was submitted to the grand jury.

The prosecutor responded that the grand jury had not based its charges on specific factual incidents. Rather, the state had asked the grand jury to charge a "representative sample" of charges from the evidence presented to it. As he explained somewhat later in the hearing, the "grand jury did not consider specific facts related to specific charges." The prosecutor explained his views on election as follows:

"If we've already at the grand jury stage decided that Count 1 is the time in the kitchen, my election has to be the same. I can't elect it differently. I can't change it in mid-course. That hasn't happened in this case. So I haven't—we haven't been tied to anything yet. So I don't know right now what Count 1 will relate to. I'll elect at the end of my case and the same with Counts 2 through 9."

Petitioner's trial counsel responded by arguing, as he had previously, that that method of charging was improper, stating, "I think the heart of the question here is *** can a grand jury find generally a violation of a statutory scheme not tied to a specific incident and then allow the prosecution to elect a specific incident that's not necessarily been found by the grand jury."

The trial court denied defendant's motion, and the case proceeded to trial.

At the close of evidence, trial counsel again moved for a judgment of acquittal on all counts, for the same reason that he had earlier, a motion that was again denied. Trial counsel likewise objected to language in the jury instructions corresponding to the state's election.

The jury unanimously convicted petitioner on all counts. He was sentenced to 300 months in prison, followed by lifetime post-prison supervision.

B. Appellate Proceedings

Petitioner appealed. On appeal, he argued that the indictment was constitutionally deficient because it failed to provide him with sufficient notice and that the prosecutor's election had operated as an unconstitutional amendment to the indictment. Like trial counsel, appellate counsel treated those issues as intertwined, focusing on the argument that the indictment was defective because the grand jury had not based it on specific conduct.

Beginning with the notice issue, the Court of Appeals concluded that the "charging process failed to provide defendant with proper notice of the charges before trial." Antoine I , 269 Or. App. at 77, 344 P.3d 69. But the Court of Appeals nonetheless ruled against petitioner on that issue, reading this court's decision in State v. Hale , 335 Or. 612, 621, 75 P.3d 448 (2003), cert. den. , 541 U.S. 942, 124 S. Ct. 1667, 158 L. Ed. 2d 366 (2004), to hold that the proper remedy for inadequate pretrial notice was not for a defendant to file a demurrer but for the defendant to seek pretrial clarification through other mechanisms. Antoine I , 269 Or. App. at 78, 344 P.3d 69.1 The Court of Appeals held that "defendant could have moved to...

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3 cases
  • Jackson v. Franke
    • United States
    • Oregon Supreme Court
    • March 31, 2022
    ...a lawyer's conduct from the lawyer's perspective at the time, without the distorting effects of hindsight.’ " Antoine v. Taylor , 368 Or. 760, 768, 499 P.3d 48 (2021) (quoting Lichau , 333 Or. at 360, 39 P.3d 851 ); see also Montez , 355 Or. at 32, 322 P.3d 487 (reasoning that "[d]efense co......
  • Evans v. Nooth
    • United States
    • Oregon Court of Appeals
    • March 9, 2022
    ...that trial counsel failed to exercise reasonable professional judgment in failing to spot a debatable legal issue." Antoine v. Taylor , 368 Or. 760, 769, 499 P.3d 48 (2021). With those principles in mind, we turn to the question of counsel's performance: Would an appellate attorney, exercis......
  • Watterson v. Highberger
    • United States
    • Oregon Court of Appeals
    • November 29, 2023
    ... ... petitioner acted out of revenge, rather than a desire to ... protect his friend. See Antoine v. Taylor, 368 Or ... 760, 768, 499 P.3d 48 (2021) ("To prove deficient ... performance, it is not enough to show that another lawyer ... would ... ...

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