Green v. Franke

• Court: Oregon Court of Appeals
• Writing for the Court: EGAN
• Citation: Green v. Franke, 261 Or.App. 49, 323 P.3d 321 (Or. App. 2014)
• Decision Date: 12 February 2014
• Docket Number: A150877.,CV110230
• Parties: Kyle James GREEN, Petitioner–Appellant, v. Steve FRANKE, Superintendent, Two Rivers Correctional Institution, Defendant–Respondent.

261 Or.App. 49

323 P.3d 321

Kyle James GREEN, Petitioner–Appellant,

v.Steve FRANKE, Superintendent, Two Rivers Correctional Institution, Defendant–Respondent.

CV110230; A150877.

Court of Appeals of Oregon.

Argued and Submitted Oct. 11, 2013.

Decided Feb. 12, 2014.

Jason E. Thompson, Salem, argued the cause for appellant. With him on the brief was Ferder Casebeer French & Thompson, LLP.

Jeremy Rice, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Shannon T. Reel, Assistant Attorney General.

Before ARMSTRONG, Presiding Judge, and NAKAMOTO, Judge, and EGAN, Judge.

EGAN, J.

Petitioner appeals a judgment denying him post-conviction relief. A jury found petitioner guilty of 18 various counts of illegal sexual conduct involving nine different minor victims. In this appeal he asserts that he was denied his Oregon and federal constitutional rights to the adequate assistance of counsel during trial. Petitioner maintains that he was denied the adequate assistance of counsel in seven different respects; we write to address only his assertion that constitutionally adequate counsel would have requested a jury instruction prohibiting the jurors from finding that petitioner had acted in conformity with his apparent propensity to sexually assault minors. SeeOEC 404(3). For the following reasons, we agree with petitioner that the post-conviction court erred in several respects.

I. FACTUAL BACKGROUND

The facts are not in dispute. In case number 07–01306, a grand jury indicted petitioner on 20 counts arising out of alleged sexual contacts—some consensual and some nonconsensual—between petitioner and eight different victims over a period of several years. In case number 08–00213, defendant was accused of one count of first-degree rape and one count of second-degree sexual abuse arising from one incident with a ninth victim. The two cases were joined for trial. ¹ Each of the incidents allegedly occurred at a place and time distinct from each of the others. Each of the victims was under age 18 at the time of the alleged crimes.

At the beginning of the trial, among other instructions, the court told the jury that “[y]ou may draw any reasonable inference from the evidence, but you must not engage in guesswork or speculation.” Each of the nine victims testified at trial. Although we discuss the specific charges in more detail below, it is helpful to briefly outline the contours of the state's case and petitioner's defenses with regard to each victim.

A. The charges and defenses1. RM

Petitioner was charged with one count of first-degree rape by forcible compulsion and one count of second-degree sexual abuse; both charges arose from a single incident. The state's evidence on those counts consisted of RM's account of petitioner forcibly raping her and witness testimony corroborating that RM had been alone with petitioner. In closing argument, petitioner's counsel suggested that petitioner and RM had not engaged in any sexual contact.

2. JA

Petitioner was charged with one count of first-degree rape by forcible compulsion and one count of second-degree sexual abuse relating to a single incident. The state's only evidence was JA's account of the incident. Petitioner called witnesses whose testimony contradicted JA's account in significant respects. In closing argument, petitioner's counsel maintained that petitioner and JA had never had any sexual contact.

3. BB

Petitioner was charged with two counts of third-degree sexual abuse arising from a single incident. The state's only direct evidence of the incident was BB's testimony. At trial, petitioner's counsel called a witness who testified that BB had admitted to fabricating the allegations against petitioner. Petitioner's counsel did not specifically address the charges pertaining to BB in his closing argument.

4. SB

Petitioner was tried on two counts of first-degree rape and two counts of second-degree sexual abuse arising out of two separate incidents. The state's evidence was based on SB's testimony about the incidents. At trial, petitioner's counsel called a witness that stated she had heard sounds consistent with consensual sex between SB and petitioner during one of the incidents. In closing argument, petitioner's counsel conceded that petitioner had engaged in sexual contact with SB, but denied that petitioner had forcibly compelled SB to have sex.

5. KH

Petitioner was tried on one count of first-degree rape by forcible compulsion and one count of second-degree sexual abuse. In closing argument, petitioner's counsel admitted that there had been criminal sexual contact between petitioner and KH, but denied that petitioner had forcibly compelled her to have sex.

6. DH

Petitioner was charged with one count of second-degree sexual abuse and one count of third-degree sexual abuse relating to a single incident. Petitioner's counsel put on no evidence to counter DH's testimony that petitioner had sexually touched her without her consent; counsel also did not make any specific arguments to the jury about the charges pertaining to DH.

7. MZ

Petitioner was charged with one count of third-degree sodomy and one count of third-degree rape. In closing argument, petitioner's counsel specifically conceded that petitioner had committed the charged crimes with respect to MZ. The charges pertaining to MZ were the only ones for which the state introduced physical evidence inculpating petitioner.

8. KN

Petitioner was charged with one count of third-degree rape; petitioner's counsel conceded to the jury that defendant was guilty of that charge.

9. CO

Petitioner was charged with one count of contributing to the sexual delinquency of a minor, the only misdemeanor charge in the combined case. As with the charge pertaining to KN, petitioner conceded his guilt at trial.

B. Closing argument and jury instructions

As noted, all of the charges were tried to the jury in a single trial. In its closing argument, the state acknowledged that the determination of the disputed factual questions revolved around assessments of credibility:

“Now, in hearing from many of the victims, it's a matter of assessing credibility. And when you go into the jury room to deliberate, we're not asking you to leave your common sense outside the door. We ask you to draw upon your experience as human beings in assessing credibility.”

After explaining generally why the jury should find the victims credible, the state also explained, one by one, why the jury should find each victim credible. Referring to evidence that petitioner had attempted to influence the testimony of certain witnesses, the state argued that, “when you look at [petitioner's] statements during the course of this trial, and of the investigation, and his tampering with witnesses, they really give you insight into his sexual assaults. And they parallel his predatory nature.” The state continued:

“This is all an issue of power and control. That is the overwhelming thing is power and control on behalf of [petitioner].

“Now, look at the patterns of sexual assault by the [petitioner]. He's assaulting victims while they're sleeping and vulnerable. [SB] and [DH].

“He takes the victims by swift attack. [RM], [JA], and [KH].

“He takes the victims through manipulation or subtle forms of coercion. [BB] and [KN].

“He offers reassurance to each victim, or tries to make them believe that they want it.”

After listing the dates of the alleged attacks, the state argued, “Now, during his—you know, he had a little break here in 2004 and 2005, but he's pretty consistent otherwise.” Finally, the state also argued, “What are the chances that you're going to have nine people coming before you, six disclosing nonconsensual sexual touching, with the varied backgrounds, with the same theme of manipulation, deceit, and coercion? What are the chances?”

At the conclusion of closing arguments, the trial court gave, among others, the following jury instructions:

“And there are two types of evidence. One is direct evidence, such as the testimony of an eyewitness. And the other is circumstantial evidence, which is the proof of a chain of circumstances pointing to the existence or nonexistence of a certain fact. You may base your verdict on direct evidence or on circumstantial evidence, or on both.

“ * * * * *

“In deciding this case, you may draw inferences and reach conclusions from the evidence, if your inferences and conclusions are reasonable and are based on your common sense and experience.”

The jury convicted petitioner on all 18 counts, and the trial court sentenced him to 400 months in prison. He appealed the resulting judgment to this court and we summarily affirmed it. The Supreme Court denied review.

In the present action, petitioner sought post-conviction relief, alleging, inter alia, that he received constitutionally inadequate counsel based on the failure to request a jury limiting instruction; the post-conviction court denied his petition. This timely appeal followed.

II. ANALYSIS

Petitioner contends that he was denied adequate assistance of counsel in violation of both Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. “We review the post-conviction trial court's legal conclusions for errors of law.” Horn v. Hill, 180 Or.App. 139, 141, 41 P.3d 1127 (2002). We begin by examining petitioner's argument under the Oregon Constitution. See State v. Kennedy, 295 Or. 260, 262, 666 P.2d 1316 (1983) (setting forth that analytical approach).

“[T]he issue in a post-conviction case involving adequacy of trial counsel is whether the petitioner received ‘an adequate performance by counsel of those functions of professional assistance which an accused person relies upon counsel to perform on his behalf.’ ” Trujillo v. Maass, 312 Or. 431, 434, 822 P.2d 703 (1991) (quoting Krummacher v. Gierloff, 290 Or. 867, 872, 627 P.2d 458 (1981)). “To...