279 Or. App. 470
Marion Cty. Cir. Ct., O.R.2016Background
- Petitioner (Everett) drove a car toward Deputy Moss in a parking lot, repeatedly ramming and then accelerating toward her; Moss fired and wounded him; petitioner fled and was later arrested.
- He was tried on five counts including attempted aggravated murder and attempted first-degree assault; defense conceded some counts and focused on mental state for the attempted murder/assault counts.
- Trial counsel requested lesser-included instructions (attempted Assault II, III, IV) and requested UCrJI 1040 (definition of attempt), but the court failed to deliver UCrJI 1040 orally and gave defective attempt instructions for the lesser offenses.
- The jury acquitted on attempted aggravated murder and first-degree attempted assault, but convicted petitioner of attempted second-degree assault and three other conceded offenses.
- On post-conviction review, petitioner argued trial counsel was ineffective for failing to ensure the jury was correctly instructed (i.e., that attempt requires intent and a substantial step). The post-conviction court found counsel deficient but concluded no prejudice; this appeal challenges that prejudice finding.
Issues
| Issue | Everett's Argument | Superintendent's Argument | Held |
|---|---|---|---|
| Whether trial counsel rendered ineffective assistance by not ensuring correct jury instruction on attempt (UCrJI 1040 omitted) | Counsel failed to exercise reasonable professional skill by not ensuring the jury was instructed that attempt requires intentional conduct and a substantial step | Post-conviction court suggested counsel should have objected but found no reversible error; superintendent argued written UCrJI 1040 may have been provided and that instructions as a whole sufficed | Counsel was deficient — omission not a reasonable tactical choice and falls below Article I, §11 standards |
| Whether Everett was prejudiced by the deficient performance (could outcome be affected?) | The omission could have affected verdict because the jury may have convicted without finding intent/substantial step; jury acquitted on first-degree attempt (which required intent), suggesting doubt about intent | The instructions as a whole described knowing/intentional conduct; no evidence that correct UCrJI 1040 would have changed outcome; also argued, on appeal, jury may have had written UCrJI 1040 | Prejudice shown: more than a mere possibility that correct instruction would have changed verdict; conviction vacated for attempted Assault II |
| Whether appellate alternative ground (written delivery of UCrJI 1040) justifies affirmance | N/A (Everett disputes sufficiency of instructions) | Superintendent urged affirmance relying on possibility jury received UCrJI 1040 in writing (not argued below) | Rejected as an alternative ground because it was not raised below and record would likely differ if it had been; trial file review did not support that written instruction was given |
| Whether Smith/precedent affects ability to instruct attempt based on recklessness/negligence | Attempt requires intentional conduct; cannot attempt recklessly or negligently | Trial court’s instructions erroneously allowed attempt liability on knowledge/recklessness/negligence theories | Court reaffirmed that attempt requires intent; erroneous instructions on lesser attempts were legally incorrect |
Key Cases Cited
- State v. Smith, 21 Or App 270 (1975) (a person cannot attempt to act recklessly; attempt requires intentional conduct)
- Green v. Franke, 357 Or 301 (2015) (post-conviction prejudice standard: counsel deficiency must have "could have tended to affect the outcome")
- Pereida-Alba v. Coursey, 356 Or 654 (2015) (burden on petitioner to prove constitutional violation in post-conviction relief)
- Bogle v. Armenakis, 172 Or App 55 (2001) (counsel inadequate for failing to ensure correct jury instruction on essential elements)
- Outdoor Media Dimensions Inc. v. State of Oregon, 331 Or 634 (2001) (requirements for affirmance on an alternative ground not raised below)
Summary disposition: The court reversed the post-conviction denial and remanded with instructions to grant relief as to Count 2 (attempted second-degree assault) because counsel was ineffective and prejudice was shown; other convictions left undisturbed.