Stephens v. Persson, A161299

Decision Date11 April 2018
Docket NumberA161299
Citation291 Or.App. 278,420 P.3d 663
Parties Melissa Louise STEPHENS, Petitioner-Appellant, v. Rob PERSSON, Superintendent, Coffee Creek Correctional Facility, Defendant-Respondent.
CourtOregon Court of Appeals

291 Or.App. 278
420 P.3d 663

Melissa Louise STEPHENS, Petitioner-Appellant,
v.
Rob PERSSON, Superintendent, Coffee Creek Correctional Facility, Defendant-Respondent.

A161299

Court of Appeals of Oregon.

Argued and submitted May 3, 2017.
April 11, 2018


Kendra M. Matthews, Portland, argued the cause for appellant. With her on the briefs was Boise Matthews LLP.

Joanna L. Jenkins, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Lagesen, Presiding Judge, and Egan, Chief Judge, and Schuman, Senior Judge.

LAGESEN, P.J.

291 Or.App. 280

Petitioner, a former elementary school teacher, was convicted of one count of first-degree rape, two counts of first-degree sexual abuse, and one count of first-degree sodomy for conduct involving one of her students, C. See State v. Stephens , 255 Or. App. 37, 39, 296 P.3d 598, rev. den. , 353 Or. 868, 306 P.3d 640 (2013) (setting forth facts underlying defendant's convictions). She then petitioned for post-conviction relief, contending that her trial counsel rendered inadequate and ineffective assistance of counsel, in violation of petitioner's 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 denied relief. On review for legal error, Green v. Franke , 357 Or. 301, 312, 350 P.3d 188 (2015), we affirm.

I. BACKGROUND

The record evidences several factual disputes that the post-conviction court necessarily resolved in favor of defendant, the superintendent of the Coffee Creek Correctional facility, when it denied relief on petitioner's claims. In conducting our review, we are not free to revisit the post-conviction court's resolution of those factual disputes. Instead, we are bound by the post-conviction court's findings of historical fact if those findings are supported by evidence in the record. Id ."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." Id . We state the facts in accordance with that standard, at times noting the factual disputes that were significant below.

A. Underlying Facts

Petitioner ran a small alternative elementary school known as Willow Cottage. C attended the school from 2001 to 2003, for fourth, fifth, and part of sixth grade. C's younger brother A also attended the school. During the time that the children attended the school, C's family became friends with petitioner's family, and the two families vacationed together.

291 Or.App. 281

Petitioner's stepfather owned a cabin at the beach and the two families would sometimes go to the beach together. C and his brothers would stay with petitioner and her husband at the cabin, and C's parents would stay in a separate hotel.

C's parents withdrew both children from the school in December 2003. They did so because petitioner was demonstrating favoritism toward C and paying an excessive amount of attention to him. Before they removed C from the school, a parent meeting was held at which other parents requested that petitioner's "favoritism and the excessive attention being paid to [C] be curtailed and that he be treated in a way similar to the rest of the children." At that meeting, one

420 P.3d 665

parent asked whether petitioner was having "inappropriate physical contact" with C. Petitioner largely remained silent at the meeting, but denied having inappropriate physical contact with C. However, later, at a school Christmas party, C's father observed that petitioner "was continuing to pay excessive amounts of attention to [C] relative to the other students." C's father observed petitioner "[h]overing over him, being close to him, putting her arm around his shoulder. Just being right next to him a lot more than the other children." It was after that Christmas party that C's parents decided to take him out of the school.

Several weeks or months after C left the school, his mother found a cell phone and charger in his bedroom, along with a love poem written by petitioner and signed with a heart and the notation "32" and photographs of petitioner. She showed the items to C's father, who put them all in a manila envelope, which he then sealed and stored in a safety-deposit box. Neither C's mother nor his father had given him the cell phone, given him permission to have a cell phone, or given anyone else permission to give C a cell phone.

About five and-a-half years later, when he was 17, C disclosed to his parents that petitioner had subjected him to sexual contact on an ongoing basis while he attended the school. C did so after he told one of his peers about the abuse, and the friend encouraged him to tell his parents. C waited about a month, but ultimately decided to tell his parents out of a desire to "save some kids from going through what I did."

291 Or.App. 282

C's parents immediately contacted the police, and gave them the cell phone and other items that they had retrieved from C's room and put in the safety deposit box. When interviewed by police, C told them that, when he was in fifth and sixth grades, petitioner had subjected him to "[a]nything from mutual inappropriate touching to oral sex and sexual intercourse." C explained that the sexual contact started when the families were on vacation in central Oregon together and petitioner started kissing him on the mouth while he was with her at the house she was staying in. C explained that the sexual contact continued until C was pulled from the school. Thereafter, according to C, he and petitioner continued to communicate by phone. Petitioner also drove to C's house a few times, and the two would "talk and what not" in the driveway before C would go to school. Petitioner gave C a cell phone, which he used to call petitioner for several weeks, until C's mother found the phone and took it away. C told officers that petitioner had a birthmark on the lower part of her body that was in the shape of a heart or a butterfly. C also told officers that petitioner had given him the love poem, and that the "32" notation was a special code for the nine-word phrase "I love you; I know; I love you too."1

Following C's disclosures, the police interviewed petitioner. During that interview, which was recorded, petitioner said that she recalled C, and told detectives that the families had traveled together, including to the beach and Sunriver. When told what C had reported, petitioner denied having sexual contact with C. When asked whether she had bought C a cell phone, petitioner denied doing so. However, she told the interviewing detective that she had loaned the phone to C:

"I got my husband a cell phone, and [C] wanted to keep in touch with me after he had left the Cottage, and I let him borrow it for a day, and he took off with it.

"* * * * *
291 Or.App. 283
"And I called and called to get that cell phone back."

The detective also asked if C had ever seen petitioner in a bathing suit or nude. Petitioner said, "No." The detective then noted that petitioner had said that she had been at the beach with C, but petitioner still denied that C had ever seen her in a bathing suit or nude. Petitioner told the detective that she would "undress in the bathroom" and was "very modest."

420 P.3d 666

The detective also asked petitioner about the photographs of petitioner and the love poem that had been found in C's bedroom. Petitioner admitted to writing the poem, but said that C must have just taken those things from the classroom, where they would have been available to C. Petitioner said that the "32" looked like "an exponential notation."

Officers arrested petitioner that day. Petitioner's lower body was photographed, which revealed a birthmark on her leg.

B. Trial

A grand jury indicted petitioner on one count of first-degree rape, two counts of first-degree sexual abuse, and one count of first-degree sodomy. Petitioner retained counsel, Cross, to represent her.

The defense theory of the case was that "[t]his is really a Walter Mitty" kind of a case, and that C's disclosures were the product of fantasy. To explain C's possession of the cell phone, trial counsel, consistent with what petitioner had told him at the time,2 introduced evidence that, although the phone was petitioner's husband's phone, it was "common practice" at the school to use petitioner's husband's phone as a loaner phone. Petitioner's husband testified that he was familiar with the cell phone that had been found in C's possession and that the phone was his. He explained that he did not carry his cell phone much at the time, and that the phone was "available for other people to use," including both students and teachers. Petitioner's husband testified that,

291 Or.App. 284
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3 cases
  • Monfore v. Persson
    • United States
    • Oregon Court of Appeals
    • March 20, 2019
    ...different as a result. Id . at 266-68, 406 P.3d 1074 (quoting Green , 357 Or. at 322-23, 350 P.3d 188 ); see Stephens v. Persson , 291 Or. App. 278, 287-88, 420 P.3d 663 (2018) (acknowledging the sequential prejudice inquiry set forth in Richardson ). Applying that analysis, the court concl......
  • Blaylock v. Laney
    • United States
    • Oregon Court of Appeals
    • July 28, 2021
    ...what petitioner was required to show to prevail on his claims of inadequate and ineffective assistance of counsel. Stephens v. Persson , 291 Or. App. 278, 291, 420 P.3d 663, rev. den. , 363 Or. 481, 424 P.3d 728 ...
  • Blaylock v. Laney, A169407
    • United States
    • Oregon Court of Appeals
    • July 28, 2021
    ...required to show to prevail on his claims of inadequate and ineffective assistance of counsel. Stephens v. Persson, 291 Or App 278, 291, 420 P3d 663, rev den, 363 Or. 481 (2018). Affirmed. ...

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