Burcham v. Franke
| Decision Date | 04 September 2014 |
| Docket Number | CV110550,A150449. |
| Citation | 265 Or.App. 300,335 P.3d 298 |
| Parties | John Steven BURCHAM, Petitioner–Respondent, v. Steven FRANKE, Superintendent, Two Rivers Correctional Institution, Defendant–Appellant. |
| Court | Oregon Court of Appeals |
Karla H. Ferrall, Assistant Attorney General, argued the cause for appellant. With her on the brief were Mary H. Williams, Deputy Attorney General, and Anna M. Joyce, Solicitor General.
Jesse Wm. Barton argued the cause and filed the brief for respondent.
Before ORTEGA, Presiding Judge, and
Opinion
Petitioner was convicted of several crimes arising from an incident in which he provided alcohol to a 16–year–old girl and, while she was intoxicated, sexually assaulted her. We affirmed petitioner's convictions on direct appeal. Petitioner then sought post-conviction relief on the ground that his trial counsel was inadequate. The post-conviction court accepted the petition and reversed petitioner's judgment of conviction in its entirety. The state appeals, assigning error to that ruling. We affirm in part and reverse in part.
The facts pertinent on appeal are undisputed. In September 2007, the victim, F, was invited by her friend, S, to attend a birthday party for S's father. Petitioner, who is S's uncle, was also at the party. At the time, F was 16 years old; petitioner was 48. After the party, petitioner invited F and S to his home to see his taxidermy collection. When they arrived, petitioner prepared margaritas. F and S each drank at least six margaritas. Petitioner later served other mixed drinks and shots of alcohol. The girls accepted all of the drinks that petitioner gave them, although F poured out some of the shots on the ground because she was worried about having had “severely too much” to drink. After several hours, petitioner began to dance with F. S was alarmed because she realized that F was “very drunk,” and S thought that the dancing was inappropriate. By the end of the night, F was slurring her words and having trouble walking. Petitioner called S's parents and told them that, because S and F had been drinking, they were going to stay overnight at his house.
At about 2:00 a.m., F and S decided to go to bed. Petitioner told them that they could sleep in his spare bedroom. Before going there, F went to get a glass of water. As she was returning, petitioner stopped her in the hallway, took her into his bedroom, laid her on his bed, and removed her pants and underwear. F testified that she attempted to stand up but could not because she was “severely intoxicated.” She testified that petitioner performed oral sex on her and then attempted to penetrate her vagina with his penis. F felt a “sharp shooting pain” that jolted her out of her “extremely drunken state.” F ran out of the room screaming for S.
S found F in the hallway and brought her back to the guest bedroom. S retrieved F's pants and underwear and helped her get dressed. F was “crying frantically.” S drove them back to S's parents' house. The next day, S's father took S and F to the police station, where they were both interviewed by police. Later, S's mother took S and F to the hospital. F was interviewed by Sexual Assault Nurse Examiner (SANE) Kathy Wade. A SANE is an emergency room nurse who specializes in examining victims of sexual assaults. S was present during the interview. During her examination of F, Wade observed “a small, linear * * * skin tear, that was about a centimeter long * * * between [F's] hymen and her labia minora.” Wade attempted to photograph F's injuries, but the camera she was using failed. Instead, Wade drew the location of the injury on a printed diagram of a woman's genital area that was included in a standardized documentation form. On that same form, Wade wrote “small skin tear, non-bleeding, approx 1 cm long.”
Petitioner was charged with two counts of rape in the first degree, ORS 163.375 (Counts 1 and 2); two counts of sodomy in the first degree, ORS 163.405 (Counts 3 and 4); two counts of sexual abuse in the first degree, ORS 163.427 (Counts 5 and 6); two counts of sexual abuse in the second degree, ORS 163.425 (Counts 7 and 8); and two counts of furnishing alcohol to a minor, ORS 471.410 (Counts 9 and 10).
As charged in this case, the crimes alleged in Counts 2, 4, and 6 required the state to prove, inter alia, that F was “incapable of consent by reason of mental incapacitation.” At the relevant time, “[m]entally incapacitated” was defined in ORS 163.305(4) (2007), amended by Or. Laws 2009, ch. 770, § 1, as follows:
At trial, Wade testified for the state about her examination of F. She testified that a tear of the skin like what she found on F is “usually caused by a blunt force trauma.” Wade also testified that her observations during her examination of F were consistent with the account that F gave during the interview at the hospital. In particular, she explained that similar skin tears can be caused by the penetration of the vagina by a penis. On cross-examination by petitioner's trial attorney, Wade acknowledged that the tear could have been caused by something other than sexual penetration. Petitioner's attorney also cross-examined Wade about her protocols for interviewing sexual assault victims, recording their responses, and documenting forensic evidence. He did not, however, specifically question Wade about the camera failure or the hospital's protocols for documenting evidence of sexual assault.
In its instructions to the jury, the trial court explained that the charges in Counts 2, 4, and 6 were based on the state's theory that F was unable to “legally consent” to the consumption of alcohol. For example, with respect to Count 2, the court explained:
Petitioner's trial counsel did not challenge the jury instructions or otherwise contest the state's theory that the absence of “consent” under the statute could be established by the mere fact of F's age.
The jury acquitted petitioner on Counts 1, 3, and 5, which alleged, respectively, first-degree rape, first-degree sodomy, and first-degree sexual abuse on the ground that F had been “physically helpless.”2 The jury convicted petitioner of the remaining counts, including Counts 2, 4, and 6 (the three “mentally incapacitated” counts). Petitioner appealed; we affirmed his conviction without issuing an opinion. State v. Burcham, 239 Or.App. 362, 246 P.3d 520 (2010). Petitioner then filed a petition for post-conviction relief, alleging that his trial counsel provided inadequate assistance that deprived petitioner of his due process rights under Article I, section 11, of the Oregon Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution. The post-conviction court reversed petitioner's judgment of conviction in its entirety. The state now appeals.
A post-conviction claim of ineffective assistance of counsel involves a two-part inquiry:
...
To continue reading
Request your trial