Horn v. Hill

• Decision Date: 13 March 2002
• Citation: 180 Or. App. 139,41 P.3d 1127
• Parties: Mark Thomas HORN, Appellant, v. Jean HILL, Superintendent, Eastern Oregon Correctional Institution, Respondent.
• Court: Oregon Court of Appeals

41 P.3d 1127

180 Or. App. 139

Mark Thomas HORN, Appellant, v. Jean HILL, Superintendent, Eastern Oregon Correctional Institution, Respondent.

CV00-0183; A112794

Court of Appeals of Oregon.

Argued and Submitted December 6, 2001.

Decided March 13, 2002.

Robert J. McCrea argued the cause for appellant. With him on the briefs were Robynne A. Whitney and McCrea, P.C., Eugene.

Jennifer S. Lloyd, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and BREWER, Judge, and BYERS, Senior Judge.

BREWER, J.

Petitioner appeals from a judgment denying him post-conviction relief from his convictions for sexual abuse, unlawful sexual penetration, and sodomy. Petitioner argues that the post-conviction trial court erred in concluding that the failure of petitioner's trial counsel to introduce evidence of the child victim's recantation before trial in his underlying criminal prosecution did not result in prejudice sufficient to authorize post-conviction relief. The state responds that, because the evidence of petitioner's guilt was overwhelming, the omission of the recantation evidence did not have a tendency to affect the result of that trial. We are bound by factual findings of the post-conviction trial court if they are supported by evidence in the record. Krummacher v. Gierloff, 290 Or. 867, 869, 627 P.2d 458 (1981); Martinez v. Baldwin, 157 Or.App. 280, 282, 972 P.2d 367 (1998), rev. den. 329 Or. 10, 994 P.2d 119 (1999). We review the post-conviction trial court's legal conclusions for errors of law. ORS 138.650; ORS 138.220; Ashley v. Hoyt, 139 Or.App. 385, 391, 912 P.2d 393 (1996). We reverse and remand.

We summarize the following facts from the post-conviction record and the post-conviction trial court's findings. Petitioner and the child's mother began dating in March 1995, when the child was two and one-half years old. That summer mother began attending a community college. Petitioner often babysat the child, and at times the child spent the night with petitioner. In early December, petitioner, mother, and the child moved into an apartment together. On December 27, the child accompanied her mother to a gynecological examination, and the child remained in the room while mother was examined by a nurse. As the examination began, the child approached the nurse, Linda Rodgers, and asked if the nurse was "going to be touching my mother" and "[a]re you going to hurt my mother?" Rogers was concerned that the child's questions revealed a "prurient interest" and talked with mother about her concerns. Rodgers also referred mother to a counseling center. Mother testified that later that day she asked the child if anyone had ever touched her in a way that she did not like, or in a way that hurt her, and the child responded that "[petitioner] does." Mother continued to cohabit with petitioner until mid-January 1996, when, according to mother, they decided to go their separate ways. However, they continued to live in the same residence for several weeks longer.

In late January and early February 1996, mother took the child to the counseling center recommended by Rodgers, where both mother and the child were interviewed by counselors. Based on statements made by mother and the child, a counselor at the center contacted the Children's Services Division (now the Department of Human Services). On February 2, Detective Zeliff received a call from a child-welfare worker regarding the alleged abuse. On February 5, Zeliff interviewed the child at the counseling center. The interview was videotaped.¹ During the interview, the child, using anatomically correct dolls, demonstrated how petitioner abused her and told the detective about the abuse.

On February 29, mother took the child to Dr. Candelaria for a physical examination to look for evidence of sexual abuse. The child refused to disrobe and would not cooperate, so Candelaria asked one of the female nurses to conduct a genital examination at the child's next well-baby checkup. In April, nurse Nina Lara conducted a genital examination of the child and concluded that the child's hymen did not appear to be intact. In a subsequent examination by both Lara and Candelaria, Candelaria observed that the hymen was "septate." Candelaria concluded that the area was "definitely abnormal or definitely suspicious," and he opined that it was caused by a penetrating injury. During the examination, the child told Candelaria that a person named "Mark"—which is petitioner's first name—had touched her genital area. Mother testified that, after the exam by Candelaria and Lara, the child ran around the house chanting "touches my pee-pee." On another occasion in August 1996, mother testified that she observed the child "masturbating" in the bathtub while explaining that petitioner had done that to her while she was in bed.

Petitioner was indicted in September 1996 on two counts of first-degree sexual abuse, ORS 163.427, one count of first-degree unlawful sexual penetration, ORS 163.411, and one count of first-degree sodomy, ORS 163.405, for acts committed during 1995 and 1996. The child was approximately two years old when the abuse allegedly began and almost five years old at the time of petitioner's trial in 1997. Before trial, the court conducted a hearing to determine whether the child was competent to testify. During the hearing, the following colloquy occurred involving petitioner's trial counsel and the child:

"Q. And do you remember being touched? Do you remember being touched, honey?

"A. (No audible response.)

"Q. No? Do you? You don't remember? Then how do you know that he did that? Did somebody tell you that he touched you? You're shaking your head yes. Who told you that he touched you?

"A. Mom.

"Q. Your mom? And when did your mommy tell you this?

"A. I don't know.

"Q. You don't know? And he really didn't touch you, did he? You're shaking your head, no, he didn't? It's just your mommy told you he did? You're shaking your head yes. Do you remember when you lived with this Mark [referring to petitioner] over here, the man without the beard? You do? You're shaking your head yes. Do you remember how long you lived with him? Time's a tough concept for a little kid, isn't it? Yeah, you're shaking your head yes. Did you live with him a long time or a short time?

"A. Long time.

"Q. A long time. Was he nice to you? No? Did he spank you?

"A. He was bad.

"Q. Pardon?

"A. He was bad.

"Q. He was bad? Did your mommy tell you he was bad? You're shaking your head yes? Do you remember him being bad? Do you remember anything he did that was bad, in your own mind? Or do you remember him as being good? Could you try to answer? You don't know the answer, honey? You can say I don't know. She shook her head no."

On redirect examination, the prosecutor asked the child more questions about the abuse, but the child began crying and asked for her mother almost immediately. The court then called a recess and allowed the child to leave the witness stand and return to her mother. After reconvening, the court ruled that the child was not competent to testify because she was easily led and had a "very spotty" memory.

The case was tried to a jury without testimony from the child. Rodgers testified for the state about the child's "prurient interest" in her mother's gynecological examination and that she was concerned that the child may have been abused. The state also called as witnesses mother, Zeliff, Candelaria, and Lara. All gave hearsay testimony as to statements made to them, or in their presence, by the child regarding sexual abuse by petitioner. In addition, Zeliff testified regarding the child's use of anatomically correct dolls during his interview with her, and Candelaria and Lara testified about what they believed were physical injuries to the child's genital area. Mother also testified that the child's behavior changed during the period that petitioner babysat for her and while she and the child lived with petitioner.

The defense theory at the underlying trial was that, in retaliation for petitioner's breaking up with her, mother fabricated the abuse allegations and instructed the child to lie to others about the abuse. Petitioner's trial counsel presented, among other evidence, expert testimony casting doubt on Candelaria's medical opinion, as well as expert testimony regarding the unreliability of witness recall, especially child witnesses. Petitioner also testified in his own defense and denied ever touching the child in a sexual manner. Petitioner's trial counsel did not offer the child's pretrial hearing statements. Petitioner ultimately was convicted of each of the charged offenses. We affirmed without opinion. State v. Horn, 156 Or.App. 396, 972 P.2d 1227 (1998), rev. den. 328 Or. 464, 987 P.2d 513 (1999).

In his petition for post-conviction relief, petitioner alleged, among other grounds for relief, that his trial counsel was constitutionally inadequate for failing to offer into evidence the pretrial "recant[ation]" of the child. The post-conviction trial court concluded that, although trial counsel was inadequate in failing to offer the evidence, the omission did not prejudice petitioner:

"Has petitioner [shown], however that `there is a reasonable probability that, but for counsel's unprofessional errors, the result of the proceeding would have been different'? In this case, there appears to have been a large amount of circumstantial and testimonial evidence. It would seem nearly impossible to believe that the recantation presented, especially when attacked by the prosecution, would have had a reasonable probability or tendency to change the result of the proceeding in the face of what was otherwise overwhelming evidence. No prejudice shown."

On appeal, petitioner assigns error to that conclusion. He argues that, although the post-conviction trial...