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Berg v. Nooth

Court of Appeals of Oregon

August 21, 2013

KEVIN RICHARD BERG, Petitioner-Appellant,
MARK NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

Argued and submitted on January 31, 2013.

Malheur County Circuit Court 10068144P Linda Louise Bergman, Senior Judge.

Dennis N. Balske argued the cause and filed the briefs for appellant.

Jeremy C. Rice, Assistant Attorney General, argued the cause for respondent. With him on the brief were Mary H. Williams, Deputy Attorney General, and Anna M. Joyce, Solicitor General.

Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.


Petitioner brought this action for post-conviction relief after having been convicted of numerous sexual and other offenses against his two daughters. Petitioner alleged that his trial counsel had provided inadequate assistance by, among other things, failing to object to testimony and prosecutorial arguments vouching for the victims' credibility. The post-conviction court denied relief, and petitioner appeals. We conclude that trial counsel's performance was constitutionally deficient and that petitioner's defense was prejudiced as a result. Accordingly, we reverse and remand.

The charges against petitioner stemmed from allegations by his daughters, H and A, that he had sexually abused them for a number of years. Those allegations arose in 2004, but that was not the first time that the girls had claimed abuse by petitioner. In 1997, A told H that petitioner had sexually abused her, and H relayed the allegation to the girls' grandmother. An investigation ensued, and both girls later denied having been touched inappropriately. Petitioner evidently was not charged with any crimes at that time.

In March 2004, when she was 15 years old, H told Deputy Sheriff Charles Pore that petitioner had been sexually abusing her. Pore took H to the police station, where he and a Department of Human Services (DHS) caseworker, Jeanette Grant, interviewed her. H told them that the petitioner had abused her many times in different locations in their home as well as in a shop behind the house. She stated that, in the shop, petitioner frequently undressed her from the waist down, made her sit on a cloth rag on a workbench, and rubbed his penis between her thighs until he ejaculated. According to H, she and petitioner would then clean up with other rags, which they would throw into the wood stove.

After the interview concluded, Pore went to petitioner's house to search for the rags that H had described. Petitioner was not home, but his wife, Lenice Berg (the girls' mother), [1] consented to a search of the premises. Pore seized several rags from the shop. Pore intended to continue searching the shop, but petitioner returned to the premises. When Pore told petitioner about H's allegations, petitioner initially told him to stop searching. After Pore called the district attorney to request a search warrant, petitioner relented and allowed the search to continue.

DHS placed both girls in foster care that day. H was later taken to CARES, a child-abuse assessment facility, where she was interviewed and given a physical examination. A, who was then age 12, initially denied that petitioner had abused either girl. However, two months later, she asserted that petitioner had been abusing her. She was also examined and interviewed at CARES.

The morning after H made the initial disclosure, Lenice awoke to find petitioner drinking alcohol, which she had never seen him do in the morning. According to Lenice, petitioner "looked like he'd just lost it" and was "acting really weird." Petitioner put a gun in his pickup and was about to drive away, so Lenice jumped into the truck with him. Petitioner drove around for some time and talked incoherently, saying, for example, that he had seen a black panther. Lenice eventually called 9-1-1 and told the dispatcher where they were, and Pore and another police officer later found them. Pore approached petitioner and asked what was going on. Petitioner told him, "God told me to come home." When Pore asked why, petitioner said, "Because I did bad things to my girls."

Pore later sent the rags that he had seized from petitioner's shop to an Oregon State Police crime lab. Three of the rags tested positive for seminal fluid and were then subjected to DNA testing. Petitioner's DNA was found on all three rags, and H's DNA was found on two of them. The third rag included a "minor profile" that was inconclusive. The testing did not reveal whether the DNA on the rags was the result of sexual conduct or whether petitioner's and H's DNA had gotten on the rags at the same time.

Petitioner was eventually charged with 33 offenses in three separate indictments. One indictment alleged one count of first-degree rape, seven counts of first-degree sodomy, one count of coercion, and 11 counts of third-degree sexual abuse, all relating to H's allegations of sexual offenses. The second indictment alleged one count of first-degree sodomy and seven counts of first-degree sexual abuse related to A's sex-offense allegations. The third indictment alleged one count each of criminal mistreatment, fourth-degree assault, and strangulation, as well as two counts of harassment, all stemming from an incident in which the girls alleged that petitioner had kicked H and then blocked A's mouth and nose with his hand, preventing her from breathing.

At petitioner's criminal trial, both parties called a number of witnesses. Only some of the witnesses' testimony is material to the issues that we address in this opinion, and we recount only that testimony here. Both H and A testified in the state's case-in-chief, describing multiple acts of sexual abuse and other violence by petitioner. One aspect of H's testimony is particularly pertinent to petitioner's claims. On cross-examination, trial counsel noted that H had said during her CARES interview that she had told her mother that petitioner was abusing her. Trial counsel asked H whether that was true, and she affirmed that she had told her mother about the abuse. Trial counsel then pointed out that, at a jurisdictional hearing related to the girls' placement in foster care, H had testified that she had never told her mother. H admitted that she had lied under oath at that hearing because she did not like living with her foster family and "wanted to go home."

The state also called Dr. Jamie Purvis, who had conducted the physical examination of both girls at CARES. Purvis was the medical director of CARES, had extensive training in diagnosis and treatment of child abuse, and had worked at CARES for nine years, during which time she had examined between 450 and 500 children. Purvis testified that, during the examinations of H and A, each girl described numerous sexual acts by petitioner, which Purvis related in her testimony. Purvis also testified that her examination of H revealed two transections of the hymen that could only be explained by "past penetrating trauma."[2] In describing H's demeanor during the examination, Purvis stated that the child was "really calm" but that

"when she talked about what I think she would consider uncomfortable, she became a little bit, she just became really, she just sort of put her head down and would speak really low, so it was difficult to hear her. So, when she talked about the incidents that occurred, her demeanor changed and that would be really consistent with what she was talking about."

Based on her physical findings as well as H's medical history and her statements, Purvis diagnosed H as having been sexually abused.

Purvis testified that her examination of A also revealed two hymenal transections that were less extensive than H's and therefore were "more concerning than they were diagnostic." She described A's demeanor during the examination as "sort of sullen when she talked about what happened, " but otherwise "pretty normal." Purvis stated that she had diagnosed A as having been sexually abused based on the physical findings as well as A's statements and history.

Petitioner was represented by counsel at the criminal trial. While cross-examining Purvis, petitioner's trial counsel asked about the various factors that contributed to the ...

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