Argued and Submitted October 11, 2013,
Umatilla County Circuit Court. CV110230. Rick J. McCormick, Senior Judge.
Jason E. Thompson argued the cause for appellant. With him on the brief was Ferder Casebeer French & Thompson, LLP.
Jeremy Rice, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Shannon T. Reel, Assistant Attorney General.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[261 Or.App. 51] EGAN, J.
Petitioner appeals a judgment denying him post-conviction relief. A jury found petitioner guilty of 18 various counts of illegal sexual conduct involving nine different minor victims. In this appeal he asserts that he was denied his Oregon and federal constitutional rights to the adequate assistance of counsel during trial. Petitioner maintains that he was denied the adequate assistance of counsel in seven different respects; we write to address only his assertion that constitutionally adequate counsel would have requested a jury instruction prohibiting the jurors from finding that petitioner had acted in conformity with his apparent propensity to sexually assault minors. See OEC 404(3). For the following reasons, we agree with
petitioner that the post-conviction court erred in several respects.
I. FACTUAL BACKGROUND
The facts are not in dispute. In case number 07-01306, a grand jury indicted petitioner on 20 counts arising out of alleged sexual contacts--some consensual and some nonconsensual--between petitioner and eight different victims over a period of several years. In case number 08-00213, defendant was accused of one count of first-degree rape and one count of second-degree sexual abuse arising from one incident with a ninth victim. The two cases were joined for trial. Each of the incidents allegedly occurred at a place and time distinct from each of the others. Each of the victims was under age 18 at the time of the alleged crimes.
At the beginning of the trial, among other instructions, the court told the jury that " [y]ou may draw any reasonable inference from the evidence, but you must not engage in guesswork or speculation." Each of the nine victims testified at trial. Although we discuss the specific charges in [261 Or.App. 52] more detail below, it is helpful to briefly outline the contours of the state's case and petitioner's defenses with regard to each victim.
A. The charges and defenses
Petitioner was charged with one count of first-degree rape by forcible compulsion and one count of second-degree sexual abuse; both charges arose from a single incident. The state's evidence on those counts consisted of RM's account of petitioner forcibly raping her and witness testimony corroborating that RM had been alone with petitioner. In closing argument, petitioner's counsel suggested that petitioner and RM had not engaged in any sexual contact.
Petitioner was charged with one count of first-degree rape by forcible compulsion and one count of second-degree sexual abuse relating to a single incident. The state's only evidence was JA's account of the incident. Petitioner called witnesses whose testimony contradicted JA's account in significant respects. In closing argument, petitioner's counsel maintained that petitioner and JA had never had any sexual contact.
Petitioner was charged with two counts of third-degree sexual abuse arising from a single incident. The state's only direct evidence of the incident was BB's testimony. At trial, petitioner's counsel called a witness who testified that BB had admitted to fabricating the allegations against petitioner. Petitioner's counsel did not specifically address the charges pertaining to BB in his closing argument.
Petitioner was tried on two counts of first-degree rape and two counts of second-degree sexual abuse arising out of two separate incidents. The state's evidence was based on SB's testimony about the incidents. At trial, petitioner's counsel called a witness that stated she had heard sounds [261 Or.App. 53] consistent with consensual sex between SB and petitioner during one of the incidents. In closing argument, petitioner's counsel conceded that petitioner had engaged in sexual contact with SB, but denied that petitioner had forcibly compelled SB to have sex.
Petitioner was tried on one count of first-degree rape by forcible compulsion and one count of second-degree sexual abuse. In closing argument, petitioner's counsel admitted that there had been criminal sexual contact between petitioner and KH, but denied
that petitioner had forcibly compelled her to have sex.
Petitioner was charged with one count of second-degree sexual abuse and one count of third-degree sexual abuse relating to a single incident. Petitioner's counsel put on no evidence to counter DH's testimony that petitioner had sexually touched her without her consent; counsel also did not make any specific arguments to the jury about the charges pertaining to DH.
Petitioner was charged with one count of third-degree sodomy and one count of third-degree rape. In closing argument, petitioner's counsel specifically conceded that petitioner had committed the charged crimes with respect to MZ. The charges pertaining to MZ were the only ones ...