Wilson v. Premo

• Decision Date: 24 August 2016
• Docket Number: A152729
• Citation: 280 Or.App. 372,381 P.3d 921
• Parties: Thomas Wilson, Petitioner–Appellant, v. Jeff Premo, Superintendent, Oregon State Penitentiary, Defendant–Respondent.
• Court: Oregon Court of Appeals

280 Or.App. 372
381 P.3d 921

Thomas Wilson, Petitioner–Appellant,
v.
Jeff Premo, Superintendent, Oregon State Penitentiary, Defendant–Respondent.

A152729

Court of Appeals of Oregon.

Argued and submitted April 30, 2015.
August 24, 2016

Clayton Lance, Lake Oswego, argued the cause for appellant. On the brief was Larry R. Roloff.

Michael J. Slauson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

GARRETT, J.

280 Or.App. 374

In this post-conviction case, petitioner contends that he received inadequate assistance of counsel in his underlying trial for first-degree rape. Petitioner was charged with four counts of raping his niece, C.¹ At trial, the state presented evidence of multiple incidents that would have supported a conviction for first-degree rape. However, at no point did the state elect which incident was to form the basis for any particular charge, nor did petitioner's attorney request a jury concurrence instruction, also commonly known as a “Boots ” instruction, informing the jury that at least 10 members had to agree on the occurrence forming the basis for a count of conviction. See State v. Boots , 308 Or. 371, 780 P.2d 725 (1989). The jury found petitioner guilty of two counts and acquitted him of two counts.

Petitioner contends that his trial counsel's failure to request a Boots instruction amounted to inadequate assistance, in violation of petitioner's rights under Article I, section 11, of the Oregon Constitution. The post-conviction court denied relief, concluding that, although petitioner's counsel should have requested the instruction, petitioner was not prejudiced by the omission. Petitioner appeals.

381 P.3d 923

For the reasons explained below, we reverse. We conclude that constitutionally adequate counsel would have requested a Boots instruction in petitioner's case. We further conclude, contrary to the post-conviction court, that the inadequacy of the representation at petitioner's trial had a tendency to affect the verdict. That is so because it is possible that the jury convicted petitioner of two counts of first-degree rape without understanding that, to do so, 10 of them had to agree on the specific occurrences underlying those convictions. Accordingly, petitioner has demonstrated prejudice and is entitled to relief on his post-conviction claim.

We state the facts consistently with the findings of the post-conviction court, which are binding if there is evidence in the record to support them. Logan v. State of Oregon , 259 Or.App. 319, 321, 313 P.3d 1128 (2013), rev. den. , 355 Or. 142, 326 P.3d 1207 (2014). Petitioner went to trial in 2009 on five counts of

280 Or.App. 375

first-degree rape: one count involving S (the victim in Count 1) and four counts involving C, petitioner's teen-aged niece (the victim in Counts 2 through 5). As noted above, this post-conviction case concerns only the four counts involving C. Those four counts were stated identically in the indictment, as follows: “The defendant, on or between January 1, 2001 to October 1, 2008, in Coos County, Oregon, did unlawfully and knowingly, by forcible compulsion, engage in sexual intercourse with [C].”

The number and nature of the charges against petitioner were described to the jury at several distinct points. In its introductory jury instructions, the trial court described the four counts of rape against petitioner involving C, as follows:

“Charge 2, Rape in the First Degree[;] * * * Charge 3 is alleged, as a separate and distinct act, Rape in the First Degree[;] * * * Count 4, Rape in the First Degree, alleged as a separate and distinct event * * * [;] and finally, Charge 5, Rape in the First Degree, alleged as a separate and distinct act[.]”

C testified to four discrete incidents of rape. According to C, the first rape occurred in her bedroom around midnight while her mother was working; petitioner “overpowered [her] and took [her] virginity” on that occasion. C testified that “[n]o longer than a week” later, petitioner again raped her in the “evening hours” in her mother's bedroom while her mother was at work. Approximately “a week or two—no longer than a month” after that, there was “another incident” in which petitioner raped C a third time, while her mother slept in a room upstairs. During that incident, C testified that petitioner came into her room with a condom on and “muffled [her] face with a pillow” and “forced [her] to have sexual intercourse with him.” C testified that petitioner raped her a fourth time in her own bedroom while her mother was not home.

In addition to the four incidents of rape, C also testified to an incident in which she and other members of her family, including petitioner, were all in a hot tub together, and, after C's mother and aunt got out, petitioner rubbed his foot on C's leg and moved “it up towards [her] privates.”

280 Or.App. 376

C testified about another incident in which petitioner made a sexual advance towards her but quit when C's aunt came home early.

Petitioner's defense theory was that none of the alleged rapes occurred. Petitioner sought to cast doubts on C's reliability, citing inconsistencies in her statements to police. During cross-examination, petitioner attempted to impeach C with information that she had told an investigating police officer, Sergeant Hermann, that petitioner had raped her six times, not four. C responded that she recalled telling the officer about “six incidents that [she] was aware of * * * [but] not necessarily as in rape” and that she did not remember because she had “a tendency to mix up the scenarios and situations” as a coping mechanism.

Hermann also testified that C told him she “was raped six times.” Petitioner's counsel asked Hermann to describe what C said about “the first of these six rapes.” Hermann responded that C told him she had been “sleeping in her mom's bed and one night [petitioner] had * * * come in * * * [and] ‘forced himself’ on her.” Petitioner's trial counsel then asked Hermann to describe the “last time” petitioner raped C, which Hermann described as when her “mother was upstairs” and petitioner “smothered her face with a pillow.” (That incident was the third of

381 P.3d 924

four described by C in her own testimony.) Petitioner's counsel asked Hermann whether, “other than these two specific incidents of alleged rape * * * were there any other instances where [C] gave any details of rapes * * * other than to tell you there were six?” Hermann replied that C had not “specified with regard to the other ones[; she] just articulated that these events occurred six times.”

In a colloquy with counsel on a matter unrelated to the issues in this appeal, the trial court observed that C's testimony reflected at least four discrete incidents of rape, although the trial court appeared to be uncertain about the order of events:

“My notes reflect * * * at least four incidents. The first incident that I heard [C] talk about was an incident where she lost her virginity. * * * The second incident that she talked about was where he allegedly grabbed her arms.

280 Or.App. 377

* * * The third incident—And I'm not so sure these are all in order * * * [t]he third incident she talked about—[petitioner] coming into the room, muffling her face with a pillow. She testified that he forced her to have sex. That's when she said that—she testified that he said, ‘If you ever say anything, I will hurt you and your family,’ and she considered that to be a threat. * * * [T]hen there was a fourth incident that she said was him entering into a bedroom, ripping off the underwear. She talked about forcing and, again, a statement about, ‘Don't be telling anybody about this.’ * * * Quite frankly, it was a little bit jumbled towards the end there. But, I made enough notes that I'm confident that there [were] at least four incidents[.]”²

The prosecution did not elect which incident of rape described by C was to be the basis for any of the four counts. It is also undisputed on appeal that neither the parties nor the trial court said anything in the jury's presence that expressly connected any count of rape to any particular factual episode. During closing argument, the prosecutor said that C had been forcibly raped by petitioner “on four separate occasions” but said nothing that linked any particular occasion to any of the four counts.

After the close of evidence, the jury was instructed that, “ten or more jurors must agree on your verdict, either guilty or not guilty.” The verdict form listed all five counts and specified that Count 1 concerned S and Counts 2 through 5 concerned C. Aside from the victims' names, however, there was no information differentiating the charges by factual circumstances. As to C, the verdict form read:

“As to Count 2, Rape in the First Degree, alleging [C] as the victim, we find the defendant: __GUILTY __ NOT GUILTY

“As to Count

...