Burcham v. Franke, 335 P.3d 298

Petitioner was convicted of multiple sex crimes and furnishing alcohol to a minor for a 16-year-old victim after he served drinks at a party and later assaulted her while intoxicated.
Victim F, age 16, and friend S attended the party; after drinking at Petitioner’s home, F became very intoxicated and was assaulted in Petitioner’s bedroom.
Counted offenses included counts for rape, sodomy, sexual abuse, and furnishing alcohol; several counts hinged on a theory of mental incapacitation due to alcohol administered without consent.
Trial court instructed the jury that ‘mentally incapacitated’ could be proven by lack of consent based on the defendant’s administration of alcohol to a minor; defense did not challenge the instruction.
Petitioner was convicted on Counts 2, 4, and 6 (mentally incapacitated counts) and acquitted on related ‘physically helpless’ counts; direct appeal upheld convictions.
Post-conviction relief granted in the trial court, reversing the judgment in its entirety on the ground of ineffective assistance of counsel; State appealed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel was ineffective for not challenging the mental-incapacitation theory	Burcham argued counsel should have contested ORS 163.305(4) interpretation.	Petitioner contends counsel’s failure to challenge the ‘consent’ interpretation prejudiced the outcome.	Yes; counsel’s failure prejudiced and warranted relief on Counts 2, 4, 6.
Whether expert medical testimony was necessary to prevail	Fitzgerald affidavit showed potential medical testimony could rebut the skin-tear evidence.	The record supported Wade’s testimony and alternative explanations were plausible without an expert.	Prejudice not shown for Counts 7 and 8; expert testimony not required to sustain reversal for Counts 2, 4, 6
Whether the State’s statutory interpretation of ‘consent’ was reasonable	State asserted ‘consent’ could include capacity based on age; interpretation was reasonable/plausible.	Attorney should have challenged the interpretation as misread of the statute’s ordinary meaning.	Petitioner’s counsel should have challenged; the interpretation was erroneous; Counts 2, 4, 6 reversed.
Whether the prejudicial effect extended to Counts 7-10	The wrong interpretation affected all mental-incapacitation counts and related charges.	Impact was limited to Counts 2, 4, 6; other counts unaffected.	Counts 7-10 not shown to be prejudiced; reversal limited to Counts 2, 4, 6; Counts 9-10 reinstated.

Lichau v. Baldwin, 333 Or 350 (2002) (two-step ineffective-assistance framework; prejudice inquiry)
Burdge v. Palmateer, 338 Or 490 (2005) (reasonable professional skill and judgment standard for counsel)
Gaines, 346 Or 160 (2009) (text-and-context approach to statutory interpretation)
PGE v. Bureau of Labor Industries, 317 Or 606 (1993) (statutory interpretation framework; legislative intent via text and context)
State v. Stamper, 197 Or App 413 (2005) (meaning of consent in related statutes; contextual analysis)
Hites-Clabaugh, 251 Or App 255 (2012) (admissibility of expert testimony on protocols; importance of protocols)
Merrick, 224 Or App 471 (2008) (preservation of arguments in post-conviction proceedings)
Krummacher v. Gierloff, 290 Or 867 (1981) (fact-specific approach to evaluating counsel performance)