Nemecek v. Taylor

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: TOOKEY, J.
• Citation: Nemecek v. Taylor, 292 Or App 58, 423 P.3d 123 (Or. App. 2018)
• Decision Date: 31 May 2018
• Docket Number: A159420
• Parties: Michael NEMECEK, Petitioner-Appellant, v. Jeri TAYLOR, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent.

292 Or.App. 58

423 P.3d 123

Michael NEMECEK, Petitioner-Appellant,

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

A159420

Court of Appeals of Oregon.

Argued and submitted March 20, 2017.

May 31, 2018

Jason L. Weber argued the cause for appellant. With him on the brief was O’Connor Weber LLP.

David B. Thompson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

TOOKEY, J.

Petitioner appeals a post-conviction court’s judgment denying him relief from his convictions of first-degree rape, ORS 163.375, and first-degree sexual abuse, ORS 163.427. Petitioner sought post-conviction relief, contending that his trial counsel’s failure to ensure that the jury was correctly instructed on his affirmative defense deprived him of his right to adequate and effective assistance of counsel guaranteed by Article I, section 11, of the Oregon Constitution, and the Sixth Amendment to the United States Constitution. The post-conviction court denied relief, concluding that, although petitioner’s trial counsel was constitutionally inadequate, that inadequacy did not prejudice petitioner. For the reasons that follow, we affirm.

BACKGROUND

At petitioner’s criminal trial, the state adduced the following evidence. Petitioner and the victim shared an apartment with their respective children and another adult, Aguilar. On the evening of the events giving rise to petitioner’s convictions, the victim’s children and petitioner’s child were not in the apartment that they shared. Following a night out with her friends, the victim, who had been drinking, called her roommate Aguilar around 3:00 or 4:00 a.m. and asked for Aguilar’s help getting into the apartment from the complex’s parking lot. Aguilar helped the victim into the apartment, where the victim—fully clothed—immediately fell asleep on top of her bed. Subsequently, Aguilar went to sleep on her bed, which was adjacent to the victim’s bed.

At approximately 4:00 a.m., Aguilar woke up and heard the victim moaning. Aguilar saw that petitioner was on top of the victim. Petitioner left the room a few minutes later. Aguilar became upset that the victim and petitioner had had sex while she was in the room. Aguilar asked the victim whether she was going to work, which began at 6:00 a.m. When the victim did not respond, Aguilar attempted to wake the victim by shaking her. After a few minutes, the victim awoke and Aguilar asked why petitioner had been in the bedroom and on top of the victim. The victim was unsure of what Aguilar was talking about, and then the victim realized that her body was exposed and she "felt as if [she] * * * had had relations." At that point, the victim called the police, and when the police arrived, she told them that she had been raped. Following a medical examination, DNA found in the victim’s cervix and vagina matched petitioner’s DNA.

In his defense at trial, petitioner contended that, although the victim was intoxicated, she had not been physically helpless when they had had consensual sex. Petitioner testified that he had been asleep when the victim came to his room, called his name, and invited him to follow her to her bedroom, and that, petitioner had then followed the victim into her bedroom where he and the victim had sex. Petitioner testified that the victim did not give him any indication that she did not consent.

Consistent with that theory of defense, in his closing argument, petitioner’s trial counsel argued:

"The Court’s going to read an instruction to you that talks about an affirmative defense. And that is that [petitioner] didn’t know that [the victim] was asleep, didn’t know that she was not really with it, not tracking, not there; didn’t know. * * *.

"* * * * *

"The evidence doesn’t establish guilt beyond a reasonable doubt, doesn’t establish that he had any knowledge that [the victim] was incapable of giving consent, especially when to his mind and to his understanding and experience of that moment she was initiating it, she was participating in it. She just wasn’t talking. She didn’t say anything except to groan and push him away."

The trial court then orally instructed the jury, in pertinent part, as follows:

"A person is considered not capable of consenting to a sexual act if that person is physically helpless. Physically helpless; a person is unconscious or for any other reason is physically unable to communicate unwillingness to an act. In any prosecution for a sexual offense in which the victim’s lack of consent is based solely on the victim’s incapacity to consent because the victim is physically helpless, it is an affirmative defense for [petitioner] to prove that at the time of the alleged offense [petitioner] did not know of the facts or condition responsible for the victim’s incapacity to consent.

"[Petitioner] has raised the affirmative defense ignorance or mistake to the charge of rape in the first degree and sexual abuse in the first degree. If [petitioner] proves this affirmative defense, then [petitioner] is not guilty of the charge of rape in the first degree and sexual abuse in the first degree. To establish the affirmative defense ignorance or mistake [petitioner] must prove by a preponderance of the evidence the following:

"Preponderance of the evidence means the greater weight of the evidence. It is such evidence that when weighed with that opposed to it has more convincing force and is more probably true or accurate."

Petitioner’s trial counsel did not object or take exception to the trial court’s oral instructions. A jury convicted petitioner of first-degree rape and first-degree sexual abuse.

Subsequently, petitioner’s trial counsel moved for a new trial, contending, among other points, that the court had read the jury an "incomplete instruction" on petitioner’s affirmative defense. Petitioner’s trial counsel averred that he had submitted jury instructions relating to his defense, but that the court had omitted part of the requested instruction. The requested instruction stated:

"[Petitioner] has raised the affirmative defense of ignorance or mistake to the charges of Rape in the First Degree and Sexual Abuse in the First Degree. If [petitioner] proves this affirmative defense, then [petitioner] is not guilty of the charges of Rape in the First Degree and Sexual Abuse in the First Degree.

"To establish the affirmative defense of Ignorance or Mistake, [petitioner] must prove by a preponderance of the evidence that, at the time of the alleged offenses, [petitioner] did not know of the facts or conditions responsible for the victim’s incapacity to consent."

The trial court denied petitioner’s motion for a new trial, explaining that "[t]he error was harmless" because it had "read the instruction given to it by the defense attorney, the jury was given the correct instruction in writing, [and] the jury was informed that the burden[ ] w[as] on the state to prove all of the elements beyond a reasonable doubt[.]"

Petitioner appealed his judgment of conviction. We affirmed petitioner’s convictions without opinion, and the Oregon Supreme Court denied review. State v. Nemecek , 251 Or. App. 302, 286 P.3d 1245, rev. den. , 353 Or. 127, 295 P.3d 640 (2012). Petitioner then filed a petition for post-conviction relief, alleging several grounds for relief, including the one that is the focus of this appeal—viz ., that his trial counsel was inadequate and ineffective for failing "to ensure that the jury was correctly instructed on the law." The post-conviction court determined that petitioner’s trial counsel had been inadequate for failing to object to the trial court’s mistake in reading the affirmative defense instruction. However, the post-conviction court denied relief, concluding that petitioner had not suffered prejudice because the oral instruction had contained the elements of the affirmative defense along with the definition of preponderance of the evidence.

On appeal, petitioner contends that the post-conviction court erred in denying him relief on the ground that his "trial counsel was constitutionally inadequate and ineffective because he failed to ensure that the jury was correctly instructed on the law." According to petitioner, the court erred in concluding that he was not prejudiced by his trial counsel’s inadequacy. In response, defendant, the superintendent of the Eastern Oregon Correctional Institution, contends that the post-conviction court did not err in concluding that petitioner was not prejudiced by his trial counsel’s inadequacy. The superintendent argues that the trial court’s oral instructions "fairly communicated to the jury the elements of [petitioner’s affirmative] defense and [petitioner’s] burden to prove it by a preponderance of the evidence."

STANDARD OF REVIEW

"We review the post-conviction court’s denial of relief for legal error. In conducting that review, we are bound by the post-conviction court’s findings of historical fact if those findings are supported by the evidence in the record. If the post-conviction court failed to make findings of fact on all the issues—and there is evidence from which such facts could be decided more than one way—we will presume that the facts were decided consistently with the post-conviction court’s conclusions of law."

Everett v. Premo , 279 Or. App. 470, 477-78, 380 P.3d 1099 (2016) (internal quotation marks and citations omitted).

ANALYSIS

"A petitioner is entitled to post-conviction relief when there has been a ‘substantial denial’ of a federal or state constitutional right, ‘which rendered the conviction void.’ " Johnson v. Taylor , 287 Or. App. 424, 429, 403 P.3d 427 (2017) (quoting ORS 138.530(1)(a) ). Both the Oregon and United States constitutions guarantee the right to "adequate performance by counsel concerning the functions of professional assistance which an...