Tenorio v. Bowser
| Decision Date | 08 June 2022 |
| Docket Number | A168082 |
| Citation | 320 Or.App. 234,513 P.3d 1 |
| Parties | Emmanuel Garcia TENORIO, Petitioner-Appellant, v. Troy BOWSER, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent. |
| Court | Oregon Court of Appeals |
Harrison Latto, Portland, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and E. Nani Apo, Assistant Attorney General, filed the brief for respondent.
Before Mooney, Presiding Judge, and Pagán, Judge, and DeHoog, Judge pro tempore.
DeHOOG, J. pro tempore In 2013, a jury found petitioner guilty of two counts of first-degree sexual abuse, ORS 163.427, and two counts of first-degree unlawful sexual penetration, ORS 163.411.1 Petitioner's charges arose from allegations that he had sexually assaulted his stepdaughter, Z, who was six or seven years old at the time. Following an unsuccessful direct appeal of his convictions, petitioner sought post-conviction relief, asserting that in various ways the performance of his trial counsel had been constitutionally inadequate and ineffective under the state and federal constitutions. The post-conviction court denied each of petitioner's claims for relief, and petitioner now appeals that denial.
Petitioner's briefing raises 10 challenges to the post-conviction court's rulings. All 10 assignments of error, the last nine of which petitioner advances pro se , assert that the post-conviction court erred in denying his claims regarding his trial attorney's performance. As we explain below, petitioner's last nine assignments require limited discussion, and we ultimately reject them all. As to petitioner's first assignment of error, however, which relates to trial counsel's failure to request a jury-concurrence instruction, we conclude that the post-conviction court erroneously held that petitioner had not established that his trial attorney's concededly deficient performance in that regard had been prejudicial to him. We therefore reverse and remand as to the first assignment of error, but otherwise affirm.
We review post-conviction proceedings for errors of law. Green v. Franke , 357 Or. 301, 312, 350 P.3d 188 (2015). We are bound by the post-conviction court's historical findings of fact if there is evidence in the record to support them. 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 describe the factual and procedural history of petitioner's criminal and post-conviction cases in accordance with those standards.
At petitioner's underlying criminal trial, the evidence of sexual abuse came primarily through the testimony and recorded statements of petitioner's stepdaughter, Z. Z was approximately eight-and-a-half years old at the time of trial. Z testified that, at the time of the charged offenses a year or two earlier, petitioner was married to Z's mother, Penny, and petitioner lived with Penny, Z, and Z's siblings and half-siblings. In telling the jury what petitioner had done to her, Z indicated that, on more than one occasion, petitioner had entered her bedroom late at night, undressed her, and touched and put his fingers in both her front and back "private parts." On at least one occasion, Z testified, petitioner had "put his private part on [her] tummy." Z also testified that petitioner had "put some kind of cream * * * inside [her] private part" and that she had struggled to wash it off the next morning, which the prosecutor later argued could support the inference that petitioner had ejaculated on her.
Z testified that the abuse had occurred four separate times, stating that, "[s]ome of them were when I was a baby and some of them when I was seven." After further questioning, Z clarified that the abuse had occurred twice during the charged time frame.2 In response to the prosecutor's questioning about petitioner coming in and touching her on "those two nights," Z testified that her mother had been "in the bedroom watching TV," but indicated that no other adults had been present when it happened.
Despite Z's indication that no other adults would have witnessed the abuse, the jury heard from a third adult, C, who described concerning circumstances that she had observed one night while staying at petitioner's home. C, who at the time was dating Z's maternal uncle (Thurston), testified that she and Thurston had spent the night there several times. On one of those occasions, C, Thurston, and Z were all asleep in the living room, with C and Thurston sleeping on the floor and Z sleeping on her "little bed."3 C awoke and saw petitioner kneeling next to Z's bed, where he remained for 30 to 45 minutes. According to C, she had been too frightened to react at the time because she was "terrified from a previous thing that had happened." Once petitioner left the room, however, C got up to check on Z and found her completely undressed and uncovered on her bed, with her clothes and blanket "stacked almost folded" next to her.4
In closing, the prosecutor summarized Z's testimony, together with statements that she had made during a forensic interview and to various lay and law-enforcement witnesses, as conveying the following facts:
The prosecutor further summarized what Z had said about petitioner putting his penis on her, as well as what she had said about petitioner putting something "warm [and] sticky" on her belly, which had been "flaky [and] dried on" in the morning. As noted, the prosecutor argued that the latter testimony could support an inference that petitioner had ejaculated and therefore must have acted with a sexual purpose.
In his rebuttal argument, however, the prosecutor clarified that the charged offenses did not encompass such a broad range of conduct. Rather, the prosecutor explained:
For his part, trial counsel did not argue the timing, number, or other specifics of the alleged occurrences. Rather, his focus was on the required elements of the alleged offenses—such as whether there was proof beyond a reasonable doubt of actual penetration or that petitioner had acted with the requisite mental state—and on circumstances that, in counsel's view, warranted distrusting any allegations by Z. Those circumstances included purported flaws in the investigation, the fact that an earlier investigation into allegations by Z (the abuse alleged to have occurred when she was three years old) had led to a finding of "unfounded," and the fact that Z was "a little girl * * * susceptible to parental influence" whose biological father was in a heated custody dispute with Z's mother, Penny.
As noted, the jury found petitioner guilty of all four counts involving Z, and the trial court merged the sexual-abuse charges into petitioner's convictions for first-degree unlawful sexual penetration. At least one aspect of petitioner's sentencing hearing appears to bear on petitioner's first assignment of error. At sentencing, the trial court also considered petitioner's pro se argument that, in addition to other arguments that counsel had previously made in support of a motion for new trial, the court should grant a new trial because C should not have been permitted to testify. In petitioner's view, C's testimony related only to a separate incident for which he had not been charged. Specifically, because the charges at issue involved conduct alleged to have occurred in Z's bedroom, whereas C's testimony related only to conduct alleged to have occurred in the living room, her testimony, petitioner argued, was both irrelevant and prejudicial.5
In rejecting that argument, the trial court reasoned as follows:
We affirmed the resulting convictions on direct appeal without written opinion. State v. Tenorio , 264 Or. App. 466, 332 P.3d 371 (2014), rev den , 356 Or. 685 (2015). In the ensuing post-conviction proceeding, petitioner asserted, among other things, that constitutionally adequate and effective trial counsel would have requested a jury-concurrence instruction because the evidence at trial could have permitted the jury to rely on more than one factual occurrence of each alleged offense in rendering its guilty verdicts. The post-conviction court agreed with petitioner that trial counsel's failure to request a...
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