Drown v. Persson, 432 P.3d 1144

Petitioner and her husband Drown repeatedly used corporal punishment on seven older children; petitioner was tried with Drown and convicted in 2008 of 12 counts of second-degree assault and two counts of fourth-degree assault.
Petitioner asserted a duress defense, claiming Drown abused and coerced her; children testified Drown was the primary source of violence and petitioner sometimes intervened.
At trial the court gave three accomplice-liability instructions, including a "natural and probable consequence" instruction that later was held to misstate the law.
Petitioner did not object to that instruction at trial; her trial counsel later admitted unawareness of controlling authority (Anlauf) and that he understood the State’s theory to be direct assault or ordinary aiding-and-abetting of the assaults.
On post-conviction review petitioner argued ineffective assistance for failure to object; the court denied relief, finding no prejudice because the record lacked any theory that later assaults flowed as natural-and-probable consequences of an earlier predicate assault.
Petitioner appealed the denial; the appellate court affirmed, focusing on lack of prejudice from counsel’s omission.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial counsel was ineffective for not objecting to the natural-and-probable-consequence jury instruction	Counsel’s failure to object was deficient and prejudiced the verdict because the erroneous instruction allowed conviction without proof of direct participation or ordinary aiding-and-abetting	Counsel’s omission did not prejudice petitioner because the instruction could not have affected the verdict given the evidence and the State’s theory (no predicate-to-consequence theory was advanced)	Court held no prejudice; counsel’s failure did not have a tendency to affect the outcome, so post-conviction relief denied

State v. Lopez-Minjarez, 350 Or. 576 (Supreme Court conclusion that the natural-and-probable-consequence instruction misstated the law)
State v. Anlauf, 164 Or. App. 672 (discussed by trial counsel; earlier appellate decision addressing accomplice-sufficiency issues)
Wade v. Brockamp, 268 Or. App. 373 (Or. App. decision finding counsel’s failure to object to the natural-and-probable-consequence instruction inadequate)
Montez v. Czerniak, 355 Or. 1 (standards for adequacy of counsel under state and federal constitutions)
Green v. Franke, 357 Or. 301 (standard of review and treatment of post-conviction fact findings)