Berg v. Nooth, 309 P.3d 164

Background

Petitioner was convicted of multiple sexual and related offenses based on allegations by his daughters (H and A); convictions followed a jury trial and a 450‑month sentence.
Key evidence: CARES interviews and medical exams (Purvis diagnosed sexual abuse; hymenal transections noted), DNA from rags in petitioner’s shop containing petitioner’s and H’s DNA, and testimony from DHS caseworker Jeanette Grant and CARES interviewer Robin DeLong.
Trial counsel pursued a defense strategy attacking the investigative system’s tendency to believe children’s allegations; in cross‑examination counsel elicited Grant’s testimony that she "did believe the children in this case."
Prosecutor’s closing repeatedly emphasized that multiple professionals (Pore, Grant, DeLong, Purvis, Dragovich) believed the victims and argued jurors should accept the victims’ accounts rather than petitioner’s denials.
Trial counsel did not move to strike Grant’s statement, did not request the court’s offered curative instruction, and did not object to the prosecutor’s vouching‑style argument. Post‑conviction relief was denied; petitioner appealed.

Issues

Issue	Petitioner’s Argument	State’s Argument	Held
Did trial counsel provide ineffective assistance by eliciting and failing to remediate vouching testimony from DHS caseworker Grant?	Counsel’s question elicited impermissible vouching; counsel should have moved to strike and sought a curative instruction.	The single question was trivial in nine days of testimony and unsurprising because DHS placed the children in foster care.	Held for petitioner: counsel’s elicitation and failure to seek instruction were unreasonable and prejudicial.
Did counsel err by failing to object to prosecutor’s closing arguments that emphasized experts’ belief in the victims?	Counsel should have objected to argument that invited jurors to defer to experts’ credibility determinations.	The prosecutor’s personal‑opinion comment was isolated and would have been cured by the usual instruction that argument is not evidence.	Held for petitioner: counsel should have objected; prosecutor’s argument impermissibly invited juror reliance on experts’ belief and was prejudicial.
Was the vouching harmless in light of corroborating physical and DNA evidence?	The case turned on credibility; physical/DNA evidence was not conclusive; vouching could have tipped the close case.	Physical findings and DNA provided strong corroboration reducing any prejudice.	Held for petitioner: given mixed verdicts and nonconclusive corroboration, counsel’s failures had a tendency to affect the result.
Is relief warranted under the Oregon Constitution without reaching federal ineffective‑assistance claim?	Relief under Article I, §11 is proper; state constitutional analysis suffices.	(State implicitly defended denial below; appellate decision rests on state constitutional grounds.)	Held for petitioner: reversed and remanded for a new trial under Oregon constitutional ineffective‑assistance standard.

Key Cases Cited

State v. Middleton, 294 Or 427 (Oregon Supreme Court) (expert or other witness may not opine on another witness’s truthfulness)
State v. Milbradt, 305 Or 621 (Oregon Supreme Court) (psychotherapist may not render opinion on witness credibility; such testimony can contaminate jury)
State v. Lupoli, 348 Or 346 (Oregon Supreme Court) (vouching testimony in child abuse cases is prejudicial where credibility is paramount)
State v. Southard, 347 Or 127 (Oregon Supreme Court) (diagnosis of sexual abuse inadmissible when it primarily rests on credibility absent physical evidence)
Trujillo v. Maass, 312 Or 431 (Oregon Supreme Court) (standard for proving ineffective assistance under Oregon law)
Gorham v. Thompson, 332 Or 560 (Oregon Supreme Court) (prejudice in post‑conviction context shown if counsel’s deficiency had a tendency to affect the result)
Simpson v. Coursey, 224 Or App 145 (Oregon Court of Appeals) (failure to strike vouching and request curative instruction more prejudicial in close cases)