Defendant appeals a judgment vacating petitioner’s convictions and granting her a new trial. Defendant assigns error to the post-conviction court’s determination that petitioner’s criminal trial counsel provided her with constitutionally deficient legal representation by failing to object to a Uniform Criminal Jury Instruction that instructed the jury that a person who aids or abets another in committing a crime is responsible for any other crimes that were a natural and probable consequence of the intended crime. Before petitioner’s post-conviction trial but after her criminal trial, the Oregon Supreme Court held in State v. Lopez-Minjarez,
I. BACKGROUND
At petitioner’s criminal trial, the state adduced the following evidence. Petitioner and the victim had known each other for about two months. During that time, the victim sold petitioner drugs and they used drugs together. The victim had a romantic interest in petitioner, which he believed she leveraged to her advantage to obtain “drugs and money.” One night, petitioner called the victim to invite him to “a party,” which the victim understood only he and petitioner would be attending. In anticipation of the “party,” and desiring a romantic encounter with petitioner, the victim obtained a motel room. However, petitioner arrived at the motel room with her boyfriend, Pray, and another woman. Petitioner informed the victim that she “didn’t have any money” and asked him if he had any drugs. The victim did not but agreed that he would go and buy some methamphetamine. Before leaving, the victim checked his wallet to see how much money he had and as he did so, noticed petitioner looking at the cash in his wallet, about $445. The victim managed to purchase $50 worth of methamphetamine and returned to the motel room, where the group proceeded to smoke some of it. Petitioner told the victim that she could sell the remainder of the methamphetamine for a profit and bring back the proceeds to him. Petitioner left the motel room with her friends.
Later, at about 3:00 a.m., petitioner returned to the motel room with Pray and two unidentified women. Petitioner asked the victim if he wanted to “continue partying,” and the victim invited her inside. Petitioner asked if her friends could also come inside, and the victim said that would be “fine.” Petitioner sat down on the bed and began to rub the victim’s feet. One of the unidentified women threw a hammer-like object in Pray’s direction, and he picked it up off the floor and went to use the bathroom. Pray came out of the bathroom and then hit the victim in the nose and eye with the object, knocking him unconscious. When the victim regained consciousness, he saw that his phone and his wallet, which had contained about $395, were missing. He discovered that his van was missing as well.
Petitioner and Pray were arrested the following day. The state charged both with two counts of first-degree robbery, ORS 164.415 (robbery involving the use of a dangerous weapon and robbery involving infliction of serious injury), two counts of second-degree robbery, ORS 164.405 (robbery based on representation that a person is armed with a dangerous weapon and robbery aided by another person present), and one count of first-degree assault, ORS 163.185 (causing serious injury with a dangerous weapon). Petitioner appeared with Pray as codefendants in a trial that occurred in 2006. The state prosecuted its case on a theory that Pray was directly liable for the charged offenses — that he personally inflicted the blow to the victim’s face — and that petitioner was liable on an aid-and-abet theory because she set up the victim for the robbery and assault.
In its closing argument, the state explained to the jury its theory of the case:
“What really happened is *** this offer [petitioner] made to, quote, unquote, ‘party’ with [the victim] was nothing more than a ploy or trick to get him alone and get — put him in a vulnerable position.
“Now when she first made that call, she may or may not have had this Robbery and Assault planned in her mind. *** I don’t have to prove that she — beyond a reasonable doubt that that was the moment that she cooked up this plan. It very well could have been that this was the plan set up from the beginning. It also could have been, and I admit, that [petitioner] simply wanted a meth fix. * * *
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“[The victim]’s all alone in the [motel room], it’s 3 o’clock in the morning, he’s basically a sitting duck. Later on in theevening they’re out, they’re cooking this up, they need more money *** because they’re using meth continuously. *** And they plan this. They cook this scheme up, they’re going to go over there and relieve [the victim] of his money.
“It wasn’t enough, though, to just go in and * * * have [petitioner] say, you know, ‘Hey, [victim], how are you doing/ and- — -and soften him up and then grab his wallet and run out the door. It would’ve been, you know, potentially doable. Instead, it turned violent. * * *”
(Emphases added.) Petitioner’s trial counsel and the state requested the following jury instruction:
“A person who aids or abets another in committing a crime, in addition to being criminally responsible for the crime that is committed, is also criminally responsible for any acts or other crimes that were committed as a natural and probable consequence of the planning, preparation, or commission of the intended crime.”1
At the time, that instruction was Uniform Criminal Jury Instruction 1052. Petitioner’s trial counsel did not object to the instruction. The jury found petitioner guilty of all charges against her.
Petitioner appealed her judgment of conviction. After we affirmed her convictions without opinion, she petitioned for review by the Oregon Supreme Court, which was denied. Petitioner timely filed her petition for post-conviction relief, and her post-conviction trial was held in July 2011. By then, we had decided State v. Lopez-Minjarez,
In assigning error to the court’s grant of post-conviction relief, defendant raises three arguments: (1) it was not objectively unreasonable for petitioner’s trial counsel to fail to “anticipate” Lopez-Minjarez; (2) the post-conviction court incorrectly stated the law when it found that petitioner had “nothing to lose” by challenging the incorrect instruction; and (3) the post-conviction court applied an incorrect standard when it determined that
II. DISCUSSION
ORS 138.530(1) provides for post-conviction relief when there has been a “substantial denial in the proceedings resulting in petitioner’s conviction, or in the appellate review thereof, of petitioner’s rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void.” Article I, section 11, of the Oregon Constitution and the Sixth and the Fourteenth Amendments to the United States Constitution provide a criminal defendant with a constitutional right to counsel. “Under both constitutions, ‘the defendant’s right is not just to a lawyer in name only, but to a lawyer who provides adequate assistance.’” Montez v. Czerniak,
In evaluating whether a defendant’s lawyer has rendered inadequate assistance under the Oregon Constitution, our analysis ordinarily proceeds in two steps:
“‘First, we must determine whether petitioner demonstrated by a preponderance of the evidence that [his lawyer] failed to exercise reasonable professional skill and judgment. Second, if we conclude that petitioner met that burden, we further must determine whether he proved that counsel’s failure had a tendency to affect the result of his trial.’”
Montez,
“[o]nly general statements can be made about what constitutes the exercise of professional skill and judgment. [Krummacher,]290 Or at 873 . Generally, ‘counsel must * * * prepare himself on the law to the extent appropriate to the nature and complexity of the case ***.’ Id. at 875. Counsel need not, however, ‘expend time and energy uselessly or for negligible potential benefit under the circumstances of the case.’ Id. at 874.”
Burdge v. Palmateer,
Under the Sixth Amendment, “a petitioner must demonstrate that his or her trial counsel’s performance ‘fell below an objective standard of reasonableness.’” Montez,
We review post-conviction proceedings for legal error, Montez,
A. Reasonable professional skill and judgment
Because petitioner’s boyfriend, Pray, attacked the victim, the state prosecuted petitioner on an accomplice liability theory that she aided and abetted the robbery and assault of the victim. That theory of accomplice liability is addressed in ORS 161.150, which provides that “[a] person is guilty of a crime if it is committed by the person’s own conduct or by the conduct of another for which the person is criminally liable, or both[,]” and ORS 161.155, which provides, in part:
“A person is criminally liable for the conduct of another person constituting a crime if:
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“(2) With the intent to promote or facilitate the commission of the crime the person:
* * * *
“(b) Aids or abets or agrees or attempts to aid or abet such other person in planning or committing the crime [.]”
(Emphasis added.) Thus, for the state to prove that a defendant is guilty of an offense as an aider-or-abettor, the state must prove the elements of the underlying crime and that the defendant had intent to promote or facilitate the crime by providing aid (or attempting or agreeing to provide aid) to another person in committing the crime.
In Lopez-Minjarez, the Supreme Court compared the natural and probable consequence instruction to ORS 161.155 and concluded that the instruction misstated the law.
“also is criminally responsible for ‘any act or other crime’ that was the ‘natural and probable consequence’ of the intended crime. In effect, the instruction tells a jury that, once it finds liability based on an aiding and abetting theory, it can find a defendant guilty of any other crimes that the jury finds to be the natural and probable consequence of the crime for which there was accomplice liability. That criminal responsibility attaches under the instruction for any naturally consequential crime, without regard to whether the defendant acted with the intent that ORS 161.155 requires.
“Put simply, Oregon law does not give rise to criminal liability on such a theory. Accomplice liability is both created by and limited by ORS 161.155.”
Id. at 583 (emphases in original). Thus, in Lopez-Minjarez, the court did not change the law concerning aiding and abetting liability; it simply held that the natural and probable consequence instruction did not comport with the law.
In Anlauf, we reviewed the denial of a motion for judgment of acquittal where the defendant had participated with the codefendant in an assault, but the codefendant acted alone by carrying and displaying a knife while the defendant was withdrawing from the assault.
“[t]here was nothing to link defendant to the knife offense here except his ‘mere presence’ when it occurred. There simply is no evidence here from which a trier of fact could draw reasonable inferences to support a finding that defendant committed the essential elements of the crime of unlawful use of the knife.”
Id. at 678-79. In so concluding, we rejected the state’s reliance on dictum in State v. Fichter,
“Leaving aside the other questions that we have noted about the vitality and relevance of Fichter, see note Í, we think that the state misreads the dictum that it relies on to mean that all acts by any of the conspirators are, ipso facto, natural and probable consequences of the unlawful combination or undertaking. Insofar asthe state’s theory is that guilt, as an aider or abettor under ORS 161.155, can be predicated on a coconspirator’s commission of a separate crime to which the defendant is in no way tied, except that the crime occurred during the course of the common criminal episode, [Oregon case law is] to the contrary.”
Id. (emphasis in original). In the referenced footnote, we stated:
“State v. Fichter,226 Or 526 ,360 P2d 278 (1961), on which the state relies, also is not on point. The decisive issue there was whether the jury could permissibly have found that stealing the victims’ property, rather than or in addition to simply assaulting them, was part of the common purpose of the defendant and his accomplices. Fichter’s value as authority must also be considered in light of the fact that it was decided before the adoption of the Criminal Code of 1971 and turns on the antiquated distinction between ‘principals in the first and second degree.’”
Id. at 675 n 1 (emphasis in original). Thus, in Anlauf — sen. accomplice liability case that lacked evidence connecting the defendant to the codefendant’s use of a weapon — we characterized the case law as not supporting liability for the natural and probable consequences of separate acts committed by accomplices and also noted that any such theory was based on principles of accomplice liability that predated the adoption of the Criminal Code of 1971 and specifically, ORS 161.155.
Defendant plays down the relevance of Anlauf as a signal that the uniform jury instruction misstated the law because that case involved the sufficiency of the evidence, not the jury instruction. In petitioner’s post-conviction trial, however, she presented as evidence an affidavit and memorandum by Ryan Scott, an experienced Oregon criminal defense trial attorney. In Scott’s view, petitioner’s counsel’s failure to object to the jury instruction fell below the reasonable standard of legal representation of a client charged on an aid-and-abet theory of liability. His reasons included the relevance of Anlauf, which “was too important and significant a decision to have gone unread by any attorney representing a person charged as an accomplice.” And, according to Scott, the “holding should have alerted any attorney to problems with the natural and probable consequences rule[.]” Moreover, two weeks before petitioner’s criminal trial, Scott had initiated a discussion about the instruction on the “listserve” for the Oregon Criminal Defense Lawyer’s Association, and had opined that “the Areiaii/holding is absolutely nonsensical” if the natural and probable consequence instruction was the correct law and that, “based on the comments [Scott had] received, most judges have agreed.” In his affidavit, Scott posited that that statement was evidence that, at the time of petitioner’s trial, criminal defense attorneys were “routinely objecting” to the instruction and that “they were mostly successful in those objections.”
With Anlauf and that evidence in mind, we are not persuaded by defendant’s contention that the “post-conviction court erred in concluding that trial counsel was inadequate for failing to anticipate” Lopez-Minjarez. Defendant cites Miller v. Lampert,
We also find unavailing defendant’s argument that the post-conviction court erred when it “found that trial counsel should have objected to the ‘natural and probable consequences’ instruction because ‘[t]here was nothing to lose by doing so’” and that the finding is “not the correct standard to apply when assessing counsel’s adequacy.” The post-conviction court reasoned that,
“[a]rmed with the statutory language and Anlauf, reasonably diligent counsel would have objected to the instruction. There was nothing to lose by doing so. It is likely that the trial judge would have read the instruction over such an objection. Just as in Lopez-Minjarez, however, the basis for a successful appeal would have been laid by such an objection.”
(Emphasis added.) To begin, defendant’s characterization of the court’s finding is incorrect. The post-conviction court found that reasonable counsel would have objected to the natural and probable consequence instruction because of Anlauf and the instruction’s discordance with the statutory language. In the context of the post-conviction court’s findings, we agree with petitioner that the “nothing to lose” language refers to a consideration of whether the failure to raise an objection was tactical in nature. That is, in some cases, defense counsel will take a course of action that is strategic or tactical in nature, and that course of action can be a reasonable exercise of professional skill: “[T]he strategy, tactics, and manner of advocacy of the defense are for counsel to determine based upon the exercise of professional skill and judgment.” Krummacher,
Thus, when determining whether counsel’s performance was constitutionally inadequate, a post-conviction court may consider tactical choices and the risks involved with those choices. Here, the post-conviction court made a finding, in light of that consideration, that objecting to the instruction was risk-free and was, therefore, not a tactical choice with the potential to backfire. See Pachl v. Zenon,
The task of a criminal defense attorney is to “prepare himself on the law to the extent appropriate to the nature and complexity of the case.” Krummacher,
B. Prejudice
As noted, the post-conviction court determined that petitioner was prejudiced under the state constitution by her trial counsel’s inadequate performance, but went on to opine that petitioner had not satisfied the federal standard for demonstrating prejudice. The post-conviction court stated:
“In respect to [pletitioner’s burden to prove prejudice from counsel’s inadequate and ineffective representation, I find that there is a significant possibility that a reasonable trier of fact could have concluded that [pjetitioner did not know of or intend to participate in robbery or assault. Trial counsel’s error thus had some tendency to affect the result at trial, making it prejudicial under Oregon law. Stevens v. State,322 Or 101 , 110 fn 5,902 P2d 1137 (1995).
“On the other hand, I cannot say that a reasonable trier of fact probably would have drawn such a conclusion. Such a finding that the error is likely to have affected the outcome is the standard for granting relief under federal law. Strickland, [466 US at 687-88 ].”
(Emphases in original.)
Defendant argues that, because we have characterized the standards for inadequate assistance of counsel as “functionally equivalent” under the Oregon and federal constitutions, Hayward v. Belleque,
We disagree with defendant’s premise that the post-conviction court’s comments about the federal standard necessarily require a conclusion that petitioner was not prejudiced under the state constitution. The court was asked to, and did, analyze prejudice under the state constitution and cases interpreting it, and defendant fails to make any specific arguments contesting that analysis or establishing that cases decided under the state constitutional standard are incorrect. A generalized comparison between state and federal law hearkening to this court’s statement in Hayward does not provide us with a sufficient basis to conclude that that analysis was in error.
“Whether a petitioner has demonstrated prejudice is a question of law that, in turn, may depend on predicate findings of fact.” Hayward,
Similarly, the natural and probable consequence instruction permitted the jury to find petitioner guilty of robbery and assault even if the jury concluded that she had only the intent to facilitate a theft of the victim’s money or car. Petitioner acknowledges that there was some nominal evidence that she had conspired to steal money from the victim. There was, however, a lack of evidence directly connecting petitioner with the violence perpetrated against the victim by Pray with an assist from one of the unidentified women. As the post-conviction court found, “a reasonable trier of fact could have concluded that [petitioner did not know of or intend to participate in robbery or assault.” In other words, the jury could have concluded that petitioner had intended to set up the victim for theft and then found her also to be guilty of robbery and assault because those crimes were the natural and probable consequence of that intention. In light of that discrepancy between what was required of the jury and what they were actually asked to consider, we conclude that the natural and probable consequence instruction would have had “a tendency to affect the result of the prosecution.” Krummacher,
Having so concluded that there was prejudice under Article I, section 11, we “do not consider [petitioner’s] claims under the Sixth Amendment.” Montez,
Petitioner was denied adequate assistance of counsel in violation of Article I, section 11, of the Oregon Constitution. She therefore is entitled to post-conviction relief as provided in ORS 138.530.
Affirmed.
Notes
The jury was also given the following aiding-and-abetting instructions, which were not contested by petitioner:
“A person who is involved in committing a crime may be charged and convicted of that crime if, with the intent to promote or facilitate the commission of the crime!,] that person aids and abets someone in committing the crime. Under these circumstances, it is not necessary for that person actually to be personally present at the time and place of the commission of the crime.
“A person aids and abets another person in the commission of a crime if the person, one, with the intent to promote or make easier the commission of the crime; two, encourages, procures, advises or assists by act or advice the planning or commission of the crime.”
Petitioner successfully moved for a judgment of acquittal on the charge of robbery based on representation that a person is armed with a dangerous weapon.
In Lopez-Minjarez, a series of crimes was committed, beginning with burglary and ending with murder.
The state posits that the post-conviction court found that the instruction was widely used. That is incorrect. Rather, the court assumed arguendo that the instruction was widely followed when it concluded that “generally accepted practice” can nevertheless be constitutionally inadequate representation. We are also careful to not place too much weight on the fact that the natural and probable consequences instruction was a Uniform Criminal Jury Instruction. On the importance, or lack of importance, that the instruction was a Uniform Criminal Jury Instruction, the court commented in Lopez-Minjarez that
“[t]he fact that the erroneous instruction is part of the Uniform Criminal Jury Instructions, of course, is inconsequential in the analysis. Those uniform instructions are drafted by a committee of members of the Oregon State Bar and are not themselves the law. They instead are a salutary effort on the part of legal practitioners in Oregon to state the law in a correct way that is helpful to jurors. As this case demonstrates, that effort does not always succeed.”
In Hale v. Belleque,