292 P.3d 595
Or. Ct. App.2012Background
- Petitioner convicted of first-degree rape, first-degree sodomy, and first-degree sexual abuse; post-conviction relief denied.
- Petitioner challenges trial counsel's performance under Article I, section 11 and the U.S. Sixth and Fourteenth Amendments.
- State moved in limine to exclude older abuse evidence by T; defense sought to use that evidence for motive/bias under OEC 412.
- Trial court allowed limited prior-abuse evidence (episode 3) but barred others; defense theory: someone else abused T, not petitioner.
- Defense presented witnesses about household dynamics; closing argued CDS and credibility of T; trial counsel did not cross-examine T.
- Appellate court remands to determine prejudice from deficient performance; closes with discussion on closing argument and cross-examination.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Was trial counsel deficient in litigating the motion in limine? | Cowan failed to argue 412(2)(b)(B) to rebut medical evidence. | Counsel pursued theory consistent with defense strategy; decision was tactical and reasonable. | Yes; performance deficient on limine strategy requiring remand for prejudice. |
| Did deficient performance prejudice petitioner? | Deficient handling could have admitted prior-abuse evidence essential to defense. | Unclear prejudice; record insufficient to prove impact. | Remand to assess prejudice in light of admissible evidence for past abuse. |
| Was closing argument constitutionally deficient? | Counsel failed to marshal favorable evidence or challenge credibility. | Closing argument did marshal some favorable points and credibility concerns. | No clear constitutional deficiency; not prejudicial as argued. |
| Was trial counsel required to cross-examine T more extensively? | Cross-examining T on timing, parrot, hallway, and other details could undercut credibility. | Given T’s age and sensitivity, extensive cross-examination could be prejudicial; closing arguments addressed credibility. | Not required under circumstances; strategic choice reasonable. |
Key Cases Cited
- State v. LeClair, 83 Or. App. 121 (Or. App. 1986) (prior false-accusations as evidence under OEC 412 considerations)
- Strickland v. Washington, 466 U.S. 668 (U.S. 1984) (establishes deficiency and prejudice standard for ineffective assistance)
- State v. Muyingo, 171 Or. App. 218 (Or. App. 2000) (admissibility of past abuse to explain medical evidence; balancing probative value)
- Adams v. Nooth, 239 Or. App. 613 (Or. App. 2010) (evaluates how to appraise trial counsel’s tactical decisions under hindsight)
- Smith v. State of Oregon, 201 Or. App. 520 (Or. App. 2005) (prejudice analysis in post-conviction relief where omitted witness evidence)