I. BACKGROUND
A. Underlying Criminal Proceedings
The facts pertinent to the issues before us are not disputed. Petitioner's convictions stem from a jury's finding
The intruders ordered R, G, and C to get face down on the floor and to shut their eyes. C was hogtied using zip ties and an extension cord and R's wrists were tied with zip ties. H, a medical marijuana cardholder, was in the bathroom at the time. He had just harvested some of his marijuana and was cleaning his equipment. When he came out of the bathroom, he was hogtied with speaker wire.
The intruders repeatedly asked H and his visitors where the money was and rummaged
Unable to get H to admit that there was any more money in the house, the man who appeared to be the group's leader ordered G to strip and get down on her hands and knees, and then violently sexually assaulted her three times in an effort to convince H to admit that there was more money in the house. He first jammed his fist into her vagina, then his gun, and then another object that G could not identify. With each penetration, the intruder asked if his assault on G made a difference in H's denial that there was more money.
Having failed to locate more money, the three men discussed leaving. H, C, and G were all put in the bathtub, stacked on top of one another. One of the intruders held a gun to G's head and cocked the gun, stating that he would kill them. The victims were then told that they would be killed if they called the police. Someone tied the bathroom
R regained consciousness after the intruders left. Although his hands and feet were tied, he was able to make his way out of the house and to the neighbors' house while yelling for help. The neighbors called police and tried to remove the zip ties from R's hands. They were able to get one off, but the other one was secured so tightly that they were unable to remove it. Paramedics later were able to cut off the zip tie. R's hand had to be put in a cast to treat the injuries inflicted by the tight zip tie. In the meantime, G, C, and H had managed to free themselves and get out of the bathroom.
Detective Marcom was one of the officers who responded to the incident. H told him that he thought there was a possibility that Felix, who had lived in the house with him previously, was involved. Marcom later arrested Felix, and she disclosed that she had set up the robbery through her friend Lummus and had driven Lummus and another person she did not know to H's house to check it out before the robbery. After Lummus was arrested, he implicated petitioner and another man, Moffett. According to Lummus, petitioner was the person who had led the three into the house, who had carried the gun and provided the zip ties, and who had choked R, kicked H, and sexually assaulted G.
Petitioner was arrested and charged with 15 offenses: four counts of first-degree robbery (one for each victim) by committing theft by using and threatening the use of physical force "while armed with a deadly weapon" (Counts 1 to 4); two counts of first-degree robbery (one each for victims H and R) for committing theft by using physical force "while causing serious physical injury" to H and R (Counts 5 to 6); four counts of second-degree robbery (one for each victim) for committing theft by using and threatening to use physical force "while aided by another person actually present" (Counts 7 to 10); three counts of unlawful sexual penetration committed against G (Counts 11 to 13);
At trial, Lummus testified for the state and, consistent with Lummus's version of events, the state's theory was that petitioner had been the first to enter the house and was the one who had choked R, kicked H, and sexually assaulted G. The state's alternative theory was that, even if petitioner was not the ringleader, he was one of the other intruders and was necessarily liable as a principal or accomplice on all of the charges by virtue of that fact. Petitioner's defense was that he was not one of the intruders and that Lummus was lying to secure a good plea deal. On the state's request, the trial court provided the "natural-and-probable-consequence" instruction to the jury as part of the instructions addressing accomplice liability.
"So, what is aiding and abetting? A person aids or abets another in the commission of a crime if, with the intent to promote or make easier the commission of the crime, that person either encourages, or procures, or advises, or assists, either by acting or by advice, the planning or commission of the crime.
"* * * * *
"A person who aids or abets another person in committing a crime, in addition for being criminally responsible for the crime that is committed, is also criminally responsible for any act or other crimes that were committed as a natural and probable consequence of the planning, preparation or commission of the intended crime."
In closing argument, the state explained that, under its aiding-and-abetting theory, all three intruders and Felix were culpable for all of the crimes:
"As a side note, I'm going to get to the aid and abet instructions momentarily, but when I say the defendant committed * * * 'X,' 'Y,' or 'Z,' that can be the defendant; that can be Tammy Felix, who set the whole thing up; that can be Robert Lummus; that can be Ryan Moffett. Because remember everybody is responsible for the conduct of everyone else."
"Now, what do we have in this particular case? We have all three defendants who are in the house. All three defendants who are there when the people are hurt. All three defendants are there when people are tied up. And all three defendants are there when [G] is sexually assaulted. What's more, we have all three defendants who continued to participate in the robbery when [G] is sexually assaulted.
"Now, I expect when you go back and you talk amongst yourselves, and you look at all the evidence, that you're going to find that the person who shoved his fist into the vagina from behind of [G] is [petitioner]. The person who shoved his gun into the vagina from behind of [G] is [petitioner].
"But, if you find that another person that was there was actually responsible for that, it changes in no way the defendant's liability for that. Why? Because when this robbery goes too far, when-if you find that this defendant didn't sign up for that part, then his actions need to show it. At that point he drops the stolen property, he walks out the door, and he goes and he calls 9-1-1, and he says 'You know what, I'm sorry, I signed up for a robbery, I didn't sign up for this horrible sexual assault of this woman.'
"Instead, what everybody did, what all three people did, and what makes them all on the hook for this, is when the defendant committed this horrible crime, everyone else stayed put, everyone else commits-continued with the robbery. Everybody else participated in assaulting the victims, everybody else participated in stacking them in the bathtub, locking up the door, and they all left together. They all left together with stolen property that was divided among themselves * * *."
The jury found petitioner guilty on all 10 robbery counts, the two counts of unlawful sexual penetration, and
B. Post-Conviction Proceedings
Thereafter, petitioner initiated this post-conviction proceeding. He alleged that his trial counsel was inadequate and ineffective for not objecting to the delivery of the natural-and probable-consequence instruction that the Supreme Court invalidated in Lopez-Minjarez , among other grounds for relief. The post-conviction court ultimately granted relief on that ground in a two-step process. First, on petitioner's motion for partial summary judgment, the court ruled that, in view of the prior case of Wade v. Brockamp ,
The superintendent appeals and petitioner cross-appeals. The superintendent assigns error to the post-conviction court's grant of relief, contending that the court erred by ruling on summary judgment that the doctrine of issue preclusion barred the superintendent from contesting that counsel performed inadequately, and also that the court erred in concluding that counsel's deficiency prejudiced petitioner on any of the counts of conviction. In his cross-appeal, petitioner contends that the post-conviction court erred in rejecting the other asserted grounds for relief.
II. STANDARDS OF REVIEW AND GENERAL LEGAL STANDARDS
We generally review a post-conviction court's grant or denial of relief for legal error, accepting the court's implicit and explicit factual findings if there is evidence to support them. Green v. Franke ,
At issue in this matter are parallel claims of inadequate assistance of trial counsel under Article I, section 11, and ineffective assistance of trial counsel under the Sixth Amendment. To establish that his trial counsel rendered inadequate assistance for purposes of Article I, section 11, petitioner was required to prove two elements: (1) a performance element-that trial counsel "failed to exercise reasonable professional skill and judgment"; and (2) a prejudice element-that "petitioner suffered prejudice as a result of counsel's inadequacy." Johnson v. Premo ,
III. ANALYSIS
A. The Superintendent's Appeal
The superintendent contends that the post-conviction court erred in two different ways. First, the superintendent contends that the post-conviction court erred when it concluded that trial counsel's failure to object to the delivery of the natural-and-probable-consequence instruction prejudiced petitioner with respect to any of his 13 convictions. The superintendent further asserts that that error means that the grant of post-conviction relief should be reversed with respect to all of petitioner's convictions. Second, the superintendent argues that the post-conviction court erred when it determined, on summary judgment, that the doctrine of issue preclusion barred the superintendent from contesting that trial counsel was inadequate for not objecting to the natural-and-probable-consequence instruction, and that we must reverse and remand for further proceedings to address the adequacy of counsel's performance. We conclude that the post-conviction court correctly determined that the delivery of the natural-and-probable-consequence instruction prejudiced petitioner with respect to his convictions for sexual penetration and assault, but erred in concluding that the instruction prejudiced petitioner with respect to the robbery convictions. We also conclude that the post-conviction court erred when it ruled that the doctrine of issue preclusion barred the superintendent from contesting whether trial counsel performed inadequately by failing to object to the delivery of the natural-and-probable-consequence instruction.
We start with the superintendent's challenge to the post-conviction court's determination of prejudice because, were the superintendent to succeed on that challenge, it would obviate the need to address the superintendent's challenge to the trial court's ruling on the performance element of petitioner's claim. See Drown v. Persson ,
In our recent decision in Drown , we described the general framework for evaluating whether a post-conviction petitioner was prejudiced by his or her trial counsel's failure to object to the delivery of the natural-and-probable-consequence instruction discredited in Lopez-Minjarez. As the Supreme Court explained in Lopez-Minjarez , the risk of harm created by the natural-and-probable-consequence instruction is that it permits a jury to convict a defendant for a crime without requiring the jury to find that the defendant had the requisite criminal intent with respect to that crime. Lopez-Minjarez ,
"we must determine whether, in light of the parties' evidence and arguments, the jury's guilty verdict on one or more of the charges could have been based on the theory of criminal responsibility contained in the erroneous instruction. Stated differently, for each charged crime, we must determine whether the jury could have found the defendant guilty of the crime on the theory that the crime was a natural and probable consequence of an earlier crime in which the defendant had aided or abetted. That inquiry requires that we first identify in time the initial, intended crime forwhich the jury could have found the defendant guilty based on an ordinary accomplice theory. That is because to trigger criminal responsibility under the erroneous instruction, the jury first had to find defendant guilty of at least one predicate crime on an accomplice (i.e. , aiding and abetting) theory."
Having conducted that inquiry in this case, we disagree with the post-conviction court that the instruction prejudiced petitioner with respect to all of his convictions. Given the evidence and the theory of the case that the prosecution presented to the jury,
Under Drown , we must identify the first-in-time convictions, if any, on which the jury could have found petitioner guilty as an ordinary accomplice. On the record in this case, those first-in-time convictions are the second-degree robbery charges (Counts 7 to 10). The prosecutor pitched the case to the jury in that manner, basically arguing that the intruders committed second-degree robbery by "march[ing] in" the way that they did to commit the theft that they did:
"[I]f they had marched in, and none of them had a gun, and they didn't cause any injuries to the victims, but they were aided by another person actually present, there was more than one person that came in, and threatened the use of physical force during the commission of theft, that would be Robbery in the Second Degree."
Although, as was the case in Lopez-Minjarez itself, the jury could have found petitioner guilty on those charges as a
That means, on the record in this case, there is some likelihood that the jury's verdicts on the remaining counts against petitioner could have turned on the erroneous natural-and-probable-consequence instruction. The instruction allowed the jury to convict petitioner on the first-degree robbery counts without finding that he had the requisite criminal intent with respect to the use of a gun or the causing of physical injury; it also allowed the jury to convict him of the charges of unlawful sexual penetration and assault without finding that he had the requisite criminal intent with respect to those charges. That is particularly so in light of how the prosecutor framed the case for the jury in closing argument. The prosecutor effectively told the jury that petitioner was on the hook for all charges even if all he "signed up for" was robbery because there was no evidence that he took action, such as calling the police, to admit that he had intended to participate in the robbery but not the other offenses. That argument, together with the prosecutor's argument that petitioner would be liable for second-degree robbery if the intruders had simply marched in to commit the thefts without using a gun or causing injuries, invited the jury to conclude that petitioner was liable for all charged offenses, simply by virtue of his participation in the second-degree robbery. The natural-and-probable-consequence instruction, with its erroneous indication that the jury could convict
Petitioner urges us to reach a different conclusion and affirm the post-conviction court's conclusion that the instruction was prejudicial as to all counts of conviction. Relying on Wade , petitioner argues that a different analysis applies. Petitioner notes that, in Wade , we concluded that the delivery of the natural-and-probable-consequence instruction was prejudicial based on our conclusion that the jury might have relied on the instruction to convict the petitioner of robbery and assault under the theory that those offenses were the natural-and-probable consequence of the petitioner's decision to facilitate the uncharged offense of theft.
We reject that argument for two reasons. First, nothing in the evidence or the arguments presented at petitioner's criminal trial would have suggested to the jury that that was a viable theory of conviction. There is simply no reason to think that the jury viewed the case in that manner. Petitioner acknowledged as much below, telling the court that he did not think the erroneous instruction likely affected the jury's verdict on the second-degree robbery charges.
Second, and relatedly, the prejudice analysis in Wade did not follow the same path as our analysis in Drown . That is because the prosecutor in that case argued to the jury that it could convict the petitioner without finding that she intended to assist in the charged robbery and assault but, instead, could do so even if it found that she only had intended to facilitate an uncharged offense such as theft. Wade ,
In sum, petitioner was prejudiced by trial counsel's failure to object to the natural-and-probable-consequence instruction with respect to Counts 1 to 6, 11, 12, and 15. Petitioner was not prejudiced by the failure to object with respect to Counts 7 to 10. The post-conviction court erred to the extent that it concluded otherwise.
2. Issue preclusion
Because we have concluded that petitioner was prejudiced by trial counsel's failure to object to the delivery of the natural-and-probable-consequence instruction, we must also address the superintendent's contention
In this case, the pertinent issue is whether petitioner's trial counsel, in not objecting to the trial court's delivery of the natural-and-probable-consequence instruction, "failed to exercise reasonable professional skill and judgment * * *." Pereida-Alba v. Coursey ,
It may be that the facts surrounding trial counsel's failure to object, when fully developed on remand, will be materially indistinguishable from the facts developed in Wade , such that the holding in Wade will compel the legal conclusion that petitioner's trial counsel performed inadequately in the same way that the lawyer at issue in Wade performed inadequately. But that will be because principles of stare decisis compel that conclusion, not because the doctrine of issue preclusion does.
B. Petitioner's Cross-Appeal
In his cross-appeal, petitioner assigns error to the post-conviction court's denial of relief on two additional specifications of inadequate and ineffective assistance of counsel. Having considered those assignments of error, we reject them without further discussion.
IV. CONCLUSION
For the foregoing reasons, we reverse the judgment granting post-conviction relief and remand for further proceedings consistent with this opinion.
Reversed and remanded on appeal; affirmed on cross-appeal.
Notes
The jury returned guilty verdicts on two additional counts of first-degree robbery with a firearm. In petitioner's direct appeal, we held that the verdicts on those counts merged with the verdicts on other counts. State v. Edwards ,
One count of unlawful sexual penetration was later dismissed.
Our decision in petitioner's direct appeal that ORCP 59 H rendered his claim of instructional error unreviewable turned on a line of cases that the Supreme Court later overruled in State v. Vanornum ,
The analysis that the superintendent sets forth in his brief is consistent with the framework we set out in Drown .
As noted, petitioner's defense was that he was not a participant in the robbery; apart from pointing to reasons why the jury should have reasonable doubt about petitioner's participation in the crime, trial counsel only minimally contested the prosecutor's theory of the case.
As we explained in Drown ,
"[b]y its terms, the instruction subjects a defendant to liability for conduct occurring after the defendant aids or abets another in committing an initial offense; that is, it 'also' imposes liability for 'acts or other crimes that [are] committed' in addition to the 'intended crime.' "