Torres v. Persson
| Decision Date | 15 July 2020 |
| Docket Number | A166028 |
| Citation | 471 P.3d 119,305 Or.App. 466 |
| Parties | Tonisa Maria TORRES, Petitioner-Appellant, v. Rob PERSSON, Superintendent, Coffee Creek Correctional Facility, Defendant-Respondent. |
| Court | Oregon Court of Appeals |
Jason E. Thompson, Salem, argued the cause for appellant. Also on the brief was Ferder Casebeer French & Thompson, LLP.
Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.*
Petitioner appeals a judgment denying her post-conviction relief related to her allegations that she received constitutionally inadequate and ineffective counsel at trial. In the underlying prosecution, a jury found petitioner guilty of robbery in the first degree and unauthorized use of a vehicle, based, in part, on the state's theory that petitioner had aided and abetted her husband in committing the robbery.1 Petitioner raises seven assignments of error, each contending that the post-conviction court erred in concluding that she had not established that her trial attorney's performance fell below the constitutional standards. We write only to address petitioner's third and fourth assignments of error, which relate to special jury instructions that petitioner contends her attorney should have requested. The instructions would have told the jury that, in the absence of other evidence, a person's mere presence at the scene of a crime or acquiescence to a crime is insufficient to establish that the person has aided and abetted the commission of a crime. According to petitioner, all attorneys exercising reasonable professional skill and judgment would have requested those instructions; petitioner further contends that she was prejudiced by her attorney's failure to request them here. The superintendent responds that those instructions were not necessary under the circumstances and that, even if counsel should have requested them, petitioner was not prejudiced by counsel's failure to do so. We conclude that petitioner has not established that trial counsel's performance was constitutionally deficient. Accordingly, we affirm the post-conviction court's judgment rejecting her claims.
Rudnitskyy v. State of Oregon , 303 Or. App. 549, 550, 464 P.3d 471 (2020) (internal quotation marks, citation, and brackets omitted). We state the relevant facts accordingly.
Petitioner's charges arose from an incident in which her husband, Aguirre, returned home after midnight and robbed a man, M, who was there at petitioner's invitation. Petitioner and Aguirre had met M weeks earlier at a local bar. Without telling Aguirre or M's girlfriend, petitioner and M had developed a relationship of some kind. According to M, the relationship was largely one-sided, as petitioner would call him repeatedly, asking him to go out drinking and gambling. Whatever the true nature of their relationship, it was undisputed that the two socialized to some degree in the weeks preceding the robbery.
During that time, petitioner's resources were limited because her vehicle had recently been damaged in a crash, leaving her without personal transportation, and she was awaiting a substantial payment to which she was periodically entitled. M, on the other hand, had at least some resources. He drove his girlfriend's car and was paid $500 in cash each week, which he carried in his wallet. Their relationship reflected that disparity. For example, on one occasion, M drove petitioner to a casino, where the two of them gambled solely with M's money. And, on another occasion, petitioner called M from the hospital, after which he drove her home and lent her money to pay for a prescription.
On the night of the robbery, petitioner invited M to have drinks at her apartment because it was too late to go to a bar. M asked about petitioner's husband several times, but petitioner assured him that she and Aguirre had separated and that he had gone to California. When M pressed further, petitioner told him that she had confirmed with Aguirre's sisters that he was in California with them.
After M arrived, the two sat outside petitioner's apartment for about five minutes, where they had a drink and smoked cigarettes. Petitioner then suggested that M get some music from his car so that they could listen to it in her apartment. M went to his car as suggested. When M returned to petitioner's apartment, he noticed that she was texting someone on a cellphone.
For a brief time after that, petitioner and M sat separately in a room near the front door, having a drink and listening to music. Within five minutes, however, Aguirre entered the apartment unannounced and locked the door behind him. Aguirre was wearing gloves. Petitioner asked Aguirre how he had gotten into the apartment, but, according to M, she did not appear alarmed and remained seated on a couch smoking a cigarette. Aguirre removed a gun from behind his back and put it to M's head.2 Aguirre told M to empty his pockets onto the couch and then, even though M complied with his demand, struck him on the head with the gun. Aguirre also demanded that M give him his car keys and, at some point, pulled out a large knife and held it to M's ribs.
M testified that Aguirre finally relented when petitioner told Aguirre to " ‘let him go’ " and " ‘leave him.’ " According to M, Aguirre then took his phone so that he could not call the police and told him to get out of the apartment. M left the apartment, but immediately headed to a nearby grocery store to seek help. On the way there, he saw the car that he had left at petitioner's apartment drive by. Because the car had tinted windows, he was unable to say who was driving or how many people were in the car. The car was located two days later, but, by then, its tires and rims were different, its stereo had been removed, and M's possessions were gone.
At petitioner's criminal trial, the state's theory was that she had aided and abetted Aguirre in robbing M and stealing his girlfriend's car and, therefore, was guilty of robbery in the first degree and unauthorized use of a vehicle. Specifically, the prosecution argued that petitioner had been involved in the planning of both crimes and had invited M to the apartment that night under the pretext that Aguirre was out of state, after which she had texted Aguirre to let him know that M had arrived. Unlike it did with regard to petitioner's presence when Aguirre robbed M, the state put on no evidence connecting petitioner with the victim's car after the robbery.3 The only apparent evidence of petitioner's post-robbery conduct was Aguirre's testimony that petitioner had stayed home when he drove off with the stolen car.
In light of the state's theory that petitioner was liable for Aguirre's conduct, the trial court instructed the jury on aiding and abetting as follows:
The jury returned unanimous verdicts finding petitioner guilty on all counts. We affirmed petitioner's convictions on direct appeal without written opinion, and the Supreme Court denied review. State v. Torres , 274 Or. App. 859, 364 P.3d 1012 (2015), rev. den. , 358 Or. 551, 368 P.3d 26 (2016). This post-conviction proceeding followed. With respect to petitioner's third and fourth assignments of error, the post-conviction court concluded:
As noted, petitioner raises seven assignments of error on appeal, of which we write to address two—petitioner's third and fourth assignments of error—and reject the others without...
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