323 P.3d 321
Or. Ct. App.2014Background
- Petitioner was tried jointly on 18 counts of sex offenses involving nine minor victims (charges included first-, second-, and third-degree rape/sexual abuse, sodomy, and one misdemeanor); jury convicted on all counts and petitioner received 400 months.
- Some counts involved conceded sexual contact (MZ, KN, CO); others involved outright denials or disputed consent where credibility was central (RM, JA, BB, DH, SB, KH).
- Prosecutor’s closing emphasized patterns, “predatory nature,” and asked jurors to infer improbability of nine similar accusations being false.
- Trial court instructed jurors they could draw reasonable inferences from evidence but did not give an OEC 404(3)/OEC 105 limiting instruction restricting propensity inferences.
- Petitioner sought post-conviction relief claiming ineffective assistance of counsel for failing to request a limiting instruction; the post-conviction court denied relief and petitioner appealed.
Issues
| Issue | Petitioner’s Argument | State’s Argument | Held |
|---|---|---|---|
| Whether defense counsel’s failure to request an OEC 404(3)/OEC 105 limiting instruction was constitutionally inadequate under Article I, §11 (Oregon Constitution) | Counsel was deficient for not requesting a limiting instruction to prevent jurors from inferring propensity from multiple charges/evidence | No deficiency because jury was separately instructed on each count and verdict forms were discrete; some nonunanimous verdicts show separate consideration | Held: Counsel’s failure was deficient — need for limiting instruction was obvious given prosecutor’s pattern argument and permissive inference instruction |
| Whether petitioner was prejudiced by that deficient performance as to each conviction | Lack of limiting instruction allowed impermissible propensity inferences that affected credibility-based charges and forcible-compulsion findings | Jury considered counts separately; some counts conceded by petitioner so no prejudice; errors harmless on certain counts | Held: Prejudiced on many counts where credibility or forcible-compulsion was central (first-degree rape counts and several sexual-abuse counts); not prejudiced as to counts where petitioner expressly conceded guilt (Counts 9, 18, 19 convictions unaffected, though sentences later affected) and not prejudiced as to Count 20 |
| Whether remedy is new trial, resentencing, or both | Petitioner sought relief for convictions and sentencing impacted by improper propensity use | State argued convictions largely reliable and some sentencing unaffected | Held: Reversed in part — convictions affected by prejudice require relief (new trial on specified counts); petitioner entitled to resentencing on Counts 9, 18, 19 because those sentences relied on convictions later found prejudiced; Count 20 affirmed |
| Whether federal Sixth Amendment analysis adds or changes outcome | Petitioner argued similar ineffective-assistance claim under Strickland standard | State relied on federal harmlessness/Strickland standards to argue no reasonable probability of different outcomes on some counts | Held: Oregon Constitution dispositive for many counts; federal analysis would not change outcome as to Counts 9, 18, 19 and 20 (no reasonable probability of different result for those counts) |
Key Cases Cited
- Trujillo v. Maass, 312 Or. 431 (standard for adequacy of trial counsel under Oregon law)
- Krummacher v. Gierloff, 290 Or. 867 (lawyer must diligently and conscientiously advance defense)
- Lichau v. Baldwin, 333 Or. 350 (prejudice requires tending to affect prosecution result)
- Leistiko, 352 Or. 172 (OEC 404(3) prohibits using other victims’ testimony to prove propensity)
- Ofodrinwa, 353 Or. 507 (consent element can be lack of actual consent or incapacity due to age)
- Smith v. State of Oregon, 201 Or. App. 520 (federal Strickland standard recognized and compared to state standard)