Argued and submitted on June 21, 2012.
Multnomah County Circuit Court 070809874 Cheryl A. Albrecht, Judge.
Ryan Kahn, Assistant Attorney General, argued the cause for appellant-cross-respondent. With him on the briefs were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.
Bronson D. James argued the cause and filed the opening brief for respondent-cross-appellant. With him on the brief was JDL Attorneys, LLP. John Logan filed the supplemental brief pro se.
ARMSTRONG, P. J.
The state appeals a judgment granting petitioner post-conviction relief and setting aside his convictions for four counts of first-degree sexual abuse, ORS 163.427, and two counts of endangering the welfare of a minor, ORS 163.575. The state argues that the post-conviction court erroneously concluded that trial counsel's failure to object to testimony regarding "treatment recommendations" rendered his performance constitutionally inadequate. Further, the state argues that, in any event, petitioner failed to establish that counsel's failure to object to the testimony prejudiced petitioner. We agree with the state that the post-conviction court erred and, accordingly, reverse and remand.
We state the facts consistently with the findings of the post-conviction court, which are binding on us if there is evidence to support them. Derschon v. Belleque, 252 Or.App. 465, 466, 287 P.3d 1189 (2012), rev den, 353 Or 208 (2013). At the time that the abuse underlying petitioner's convictions came to light, petitioner shared physical custody of his two children, seven-year-old C and her older sibling, N, with their mother, petitioner's ex-wife. The dissolution of petitioner and his ex-wife's marriage had been contentious, and petitioner's relationship with his ex-wife, who had primary custody of both children, was strained. While driving the children to his ex-wife's house at the conclusion of a visit, petitioner became upset when one of the children expressed a desire not to live with petitioner. During the outburst that followed, petitioner threatened to kill his ex-wife and punched the rearview mirror of his car, breaking it and cutting his hand. Petitioner's conduct upset the children, and, when they arrived at their mother's house, the children told her and their stepfather what petitioner had said and done.
Thereafter, petitioner's ex-wife contacted Haines, an officer in the Portland Police Bureau's Domestic Violence Reduction Unit. Haynes conducted a series of individual interviews with petitioner's ex-wife and the children, and, although initially focused on petitioner's threatening behavior, the interviews revealed that petitioner had engaged in unconventional conduct around the children. Specifically, petitioner's ex-wife said that petitioner chose to be nude in his home in front of the children and that he sometimes "cuddled" with C while nude. C confirmed petitioner's behavior and also indicated that petitioner had touched her vaginal area. That prompted Haynes to stop the interview, consult with a detective from the bureau's Child Abuse Team, and schedule a sexual-abuse evaluation for C with CARES Northwest, a child-abuse-assessment center.
At CARES, C underwent a medical examination, performed by a staff physician, Dr. Bays, and an interview with Findley, a staff social worker and interviewer. During the interview with Findley, C again disclosed that petitioner had cuddled with her while he was nude and that, while cuddling, petitioner had touched her chest and vaginal area. She also said that she had felt petitioner's erect penis on her leg. After the evaluation, Bays and Findley prepared a report containing multiple treatment recommendations.
During an interview with a detective regarding his conduct with C, petitioner fully admitted that he was often nude in his home in front of the children. He also acknowledged that he sometimes "cuddled" with and "caressed" C while he was nude. Notwithstanding those admissions, petitioner adamantly denied touching C in any sexual way, although he conceded that he may have inadvertently touched C's vaginal area.
A grand jury subsequently indicted petitioner on eight counts of first-degree sexual abuse and two counts of endangering the welfare of a minor. Petitioner pleaded not guilty and proceeded to a jury trial. At trial, as pertinent to this appeal, the state called Findley, who offered the following testimony about the CARES treatment recommendations:
"We recommended [C] not to have any direct contact with [petitioner] at that time.
"* * * * *
"We also recommended that [petitioner] have a full psychological evaluation with attention paid to anger management and a sex offender evaluation.
"* * * * *
"We recommended further investigation by * * * law enforcement into the allegations of abuse. We also recommended [for the] need to evaluate [the] safety of [N] who has had ...