Bohnenkamp v. State, 429 P.3d 738

A 414-pound metal furnace coil was stolen and later traced to a recycler who said she bought it from a woman (Ephrem) who said she got it from “Nate” and “Virgil.” Ephrem gave some identifiers linking to petitioner (Virgil) but her description and in-court ID were weak.
Police interviewed petitioner’s nephew, Jacob Miller, who told the officer he helped petitioner and two women load large metal items into petitioner’s truck; Miller later could not recall the events at trial due to memory impairment from a head injury.
At the bench trial, the state introduced Miller’s prior out-of-court statements through the interviewing officer after counsel raised but did not press a hearsay objection; the trial court admitted the statements and found petitioner guilty, noting Miller’s statements “tie[d] things in.”
On post-conviction review petitioner argued trial counsel was ineffective for failing to competently challenge admissibility of Miller’s statements, which the parties and court agreed were inadmissible hearsay if used for their truth.
The post-conviction court found counsel deficient and the statements inadmissible but concluded admission was a minor factor and thus did not prejudice petitioner; the Court of Appeals reversed and remanded to grant relief.

Issue	Petitioner’s Argument	State’s Argument	Held
Whether trial counsel’s failure to adequately contest admissibility of Miller’s out-of-court statements was prejudicial ineffective assistance	Counsel’s deficient performance allowed inadmissible hearsay that materially affected the verdict	Admission was harmless because the trial court’s speaking verdict relied primarily on other evidence, so no prejudice	Counsel was deficient and the erroneous admission could have affected the outcome; prejudice established; relief granted
Whether Miller’s statements were admissible based on unavailability under OEC 804	Miller’s lack of memory did not make his prior statements admissible for their truth	State did not contest that the statements were not admissible under OEC 804	Court agreed the statements were not admissible under OEC 804 and trial counsel failed to correct the court’s apparent misunderstanding

Green v. Franke, 357 Or. 301 (2015) (standard for proving post-conviction ineffective assistance under Article I, § 11)
Maxfield v. Nooth, 278 Or. App. 684 (2016) (prejudice inquiry asks whether deficient performance could have affected the outcome)
State v. Hunter, 141 Or. App. 73 (1996) (bench-trial speaking verdict can show erroneous evidence was harmless when court relied primarily on other evidence)