Behrle v. Taylor

• Decision Date: 07 October 2020
• Docket Number: A161724
• Citation: 476 P.3d 475,307 Or.App. 126
• Parties: Justin Theron BEHRLE, Petitioner-Respondent, v. Jeri TAYLOR, Superintendent, Eastern Oregon Correctional Institution, Defendant-Appellant.
• Court: Oregon Court of Appeals

307 Or.App. 126

476 P.3d 475

Justin Theron BEHRLE, Petitioner-Respondent,

v.Jeri TAYLOR, Superintendent, Eastern Oregon Correctional Institution, Defendant-Appellant.

A161724

Court of Appeals of Oregon.

Argued and submitted April 16, 2018.

October 7, 2020

Timothy A. Sylwester, Salem, argued the cause for appellant. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Jed Peterson, Portland, argued the cause for respondent. Also on the brief was O'Connor Weber LLC.

Before Ortega, Presiding Judge, and Egan, Chief Judge, and Powers, Judge.^*

POWERS, J.

In this post-conviction proceeding, defendant, the superintendent of the Eastern Oregon Correctional Institution, appeals from a judgment granting petitioner post-conviction relief based on claims of inadequate assistance of trial counsel. In the underlying criminal action, petitioner was tried to the court and convicted of a number of sex crimes arising out of two incidents in which petitioner abused a 13-year-old victim during a camping trip. In this proceeding, petitioner asserted, among other things, that he was provided inadequate assistance of counsel based on (1) trial counsel's failure to object to statements by the prosecutor during closing argument that, petitioner contended, amounted to impermissible vouching and (2) counsel's failure to object to the prosecutor's leading questions during direct examination of the victim. The post-conviction court agreed with petitioner and granted post-conviction relief on those specifications of inadequate assistance of counsel. The court rejected petitioner's remaining specifications.

The superintendent appeals, asserting that the post-conviction court erred in concluding that trial counsel provided deficient performance and that, even if there was deficient performance, petitioner failed to prove that counsel's deficient performance prejudiced him. Petitioner cross-assigns error to the post-conviction court's rejection of his three other specifications of inadequate assistance of counsel.¹

After considering the merits of petitioner's cross-assignments of error, we reject them without further discussion, concluding, as the post-conviction court did, that, even if counsel failed to exercise reasonable professional skill and judgment, that deficient performance did not prejudice petitioner. As explained below, we also agree with the superintendent's arguments that the post-conviction court erred in determining that petitioner was entitled to post-conviction relief based on trial counsel's failure to object to the prosecutor's leading questions on direct examination of the victim and in granting relief on petitioner's fourth specification of inadequate assistance of counsel, regarding vouching. Accordingly, we reverse and remand.

To obtain post-conviction relief, a petitioner must establish a "substantial denial" of "rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void." ORS 138.530(1)(a). A criminal defendant is guaranteed the right to the adequate assistance of counsel under Article I, section 11, of the Oregon Constitution and the right to effective assistance of counsel under the Sixth Amendment to the United States Constitution. Montez v. Czerniak , 355 Or. 1, 6, 322 P.3d 487, adh'd. to as modified on recons. , 355 Or. 598, 330 P.3d 595 (2014) ; Strickland v. Washington , 466 U.S. 668, 686, 104 S. Ct. 2052, 80 L Ed. 2d 674 (1984). The standards under the Oregon Constitution and the federal constitution are "functionally equivalent." Montez , 355 Or. at 6-7, 322 P.3d 487 ; Aguilar v. State of Oregon , 292 Or. App. 309, 313-14, 423 P.3d 106 (2018) (recognizing same and observing that there are some issues—not present in this case—where the state and federal standards diverge).

To prevail on a claim of inadequate assistance of counsel, a petitioner must show both deficient performance and prejudice. That is, the petitioner must show that his or her counsel "failed to exercise reasonable professional skill and judgment and that, because of that failure, the petitioner suffered prejudice." Pereida-Alba v. Coursey , 356 Or. 654, 661-62, 342 P.3d 70 (2015). "The burden of proof of facts alleged in the petition shall be upon the petitioner to establish such facts by a preponderance of the evidence." ORS 138.620(2).

We are bound by the court's factual findings "if any evidence in the record supports those findings." Fisher v. Angelozzi , 285 Or. App. 541, 545, 398 P.3d 367 (2017). If the post-conviction court does not make express findings on a specific issue and there is evidence from which the facts could be decided more than one way, we will presume that the court decided the facts in a manner consistent with its ultimate conclusion. Ball v. Gladden , 250 Or. 485, 487, 443 P.2d 621 (1968). We review the post-conviction court's legal conclusions for errors of law. Green v. Franke , 357 Or. 301, 312, 350 P.3d 188 (2015).

As noted above, the post-conviction court determined that petitioner was entitled to post-conviction relief on his fourth and fifth specifications of inadequate assistance of counsel. To the extent that there is any dispute about the facts, we recount them consistently with that determination. The events that gave rise to the charges against petitioner took place during a camping trip that included petitioner, the 13-year old victim, S, S's mother, who was romantically involved with petitioner, and S's mother's roommate, Taasevigen, among others. An extended recitation of the details of the events during the camping trip is not necessary to resolve the issues on appeal.

Petitioner was charged with one count each of second-degree sodomy, first-degree sexual abuse, and second-degree unlawful sexual penetration. He waived his right to a jury trial and was tried to the court. The state presented direct evidence of the abuse from S and a police detective who had interviewed her. The state also presented evidence about the events before and after the abuse, both on the camping trip and at the home that S, her mother, petitioner, and Taasevigen shared. That evidence came from S's mother and Taasevigen. In general terms, their testimony suggested that, during the camping trip and when they returned home, Taasevigen was suspicious that something inappropriate was happening between petitioner and S, while S's mother at first was reluctant to believe that but eventually came to believe it. Finally, the state presented evidence from a friend of S, J, in whom S had confided about the abuse, and who had alerted S's mother.

The theory of the defense appears to have been simply to have petitioner testify that the abuse had not happened and to ask the court to conclude that petitioner was more credible than the state's witnesses. The trial court found petitioner guilty on all of the charges. Petitioner filed a notice of appeal from the resulting judgment, but later voluntarily dismissed that direct criminal appeal.

Petitioner then initiated this post-conviction proceeding, alleging that he received inadequate and ineffective assistance of counsel in violation of his rights under Article I, section 11, and the Sixth Amendment. The post-conviction court considered documentary evidence, primarily the transcript of the trial, and heard argument from counsel. Neither party presented any evidence from petitioner's trial counsel.

The court determined that petitioner was entitled to post-conviction relief on his fourth and fifth specifications of inadequate assistance. We begin by considering petitioner's fifth specification, which the superintendent challenges in her second assignment of error.

In that assignment, the superintendent challenges the post-conviction court's grant of relief based on petitioner's claim that trial counsel failed to object to "yes or no" questions asked by the prosecutor during direct examination of S. In the petition, petitioner asserted that "[l]eading questions were common throughout the complainant's direct testimony" and he identified 12 exchanges that elicited "yes" responses from S as "particularly objectionable."

The post-conviction court noted that there were many yes or no questions in the direct examination of S and that "this goes beyond just not objecting to a question, it is a—basically her entire testimony." The court then explained that, because this case was a matter of credibility, and, because those questions precluded attacking the consistency of S's testimony, competent counsel would have objected and that, "[i]f there was a strategy [to not object] in this particular case, under these circumstances, I don't think it was a reasonable one." The court also concluded that it could not "say in good conscience that it wouldn't have a tendency to affect the outcome because the victim's testimony was so critical to the issues and allegations."

On appeal, the superintendent argues that the yes or no questions were not necessarily leading questions, and that any leading questions were permissible in context. The superintendent further asserts that petitioner failed to establish prejudice due to trial counsel's failure to object. Petitioner responds that "[t]rial counsel failed to effectively implement a strategy of challenging [S]’s story by failing to object when the state elicited damaging testimony based on impermissible questions." Petitioner further argues that he was prejudiced because, if counsel had objected and the prosecutor had asked only proper questions, the result could have been different.

A problem with petitioner's argument, and with the post-conviction court's ruling, arises on the prejudice prong of petitioner's claim. When a petitioner faults trial counsel for failing to take action that would have yielded different or additional witness testimony, "it is incumbent on the petitioner to provide ‘evidence by affidavit, testimony or...