Submitted July 8, 2013.
Lake County Circuit Court. 090184CV. William L. Lasswell, Senior Judge.
James N. Varner filed the brief for appellant.
Jim Joseph Vanecek filed the supplemental brief, Pro se.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the brief for respondent.
Before Egan, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.
[263 Or.App. 175] SCHUMAN, S. J.
In this post-conviction case, petitioner alleges that his counsel at his criminal trial provided him with constitutionally inadequate representation by failing to object to the admission of testimony regarding some of
petitioner's uncharged conduct. In the underlying case, petitioner was convicted of one count of first-degree sexual abuse, ORS 163.427(1)(a)(A), and one count of second-degree unlawful sexual penetration, ORS 163.408(1), involving a 13-year-old girl. He now argues that adequate trial counsel would have objected to evidence that petitioner viewed Internet pornography and pornographic magazines depicting young-looking women in sexual activity; to evidence that he sexually abused one of the victim's friends; and to evidence that, eight years before the charged conduct, when he was 25, he had been convicted of sexually abusing a 15-year-old girl. We conclude that, even if we were to agree with petitioner that his trial counsel was inadequate as alleged--a conclusion we do not reach or even imply--petitioner has not carried his burden of establishing that any inadequacy of counsel was prejudicial. We therefore affirm.
Petitioner, as appellant, has the obligation to present " [a] concise summary, without argument, of all the facts of the case material to determination of the appeal. The summary shall be in narrative form with references to the places in the transcript, narrative statement, audio record, record, or excerpt where such facts appear." ORAP 5.40(9). He does not do so. Instead, he quotes (for 19 single-spaced pages) his post-conviction trial court memorandum, but the " factual background" section of the memorandum is two short paragraphs reciting what petitioner was charged with, what he was convicted of, and who his trial counsel was. The rest of the memo, and of the brief's " Statement of Facts," consists of a witness-by-witness summary of the testimony at the criminal trial, without citing anything in the trial court transcript or record, quoting from the court's findings of facts or, for that matter, indicating whether there were any. The state's brief contains no statement of facts. Petitioner was charged with putting his hand down the pants of 13-year-old C and inserting his finger into her vagina. Petitioner denied all of the accusations; his theory [263 Or.App. 176] at trial was apparently that C falsely accused him because she had taken her sister's side in a dispute between the sister and petitioner, and that, to the extent that there was any sexual contact, it was an accidental touching during horseplay. Petitioner was convicted of first-degree sexual abuse (Count 2) and second-degree unlawful penetration (Count 4) with respect to C and acquitted of two other charges.
During trial, the state presented evidence, without objection, that C's sister had seen petitioner looking at Internet pornography and " incest stories" as well as pornographic magazines depicting nude teenage girls; evidence of alleged uncharged sexual contact between petitioner and one of C's schoolmates; and evidence that petitioner had been convicted of " contributing to the sexual delinquency of a minor for having sex with a 15-year-old juvenile when he was 25 years old." As noted, petitioner was convicted of two charges. On direct appeal, we affirmed the convictions without opinion. Petitioner subsequently brought this action for post-conviction relief. The post-conviction court determined that (1) regarding the pornographic material, an objection to its admission would have lacked legal merit and, in any event, petitioner did not submit evidence that the trial court, as finder of fact, relied on that information in reaching its verdict; (2) regarding the testimony about sexually touching C's friend, the objection would have lacked legal merit because it was relevant to disprove petitioner's claim that the touching was accidental; and (3) regarding the earlier conviction, the state never questioned petitioner about that incident--he volunteered it himself. Petitioner now challenges these determinations by the post-conviction court. We reject his challenge to the second and third determinations without discussion.
In order to obtain post-conviction relief for inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution, petitioner must show, " by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that petitioner suffered prejudice as a result." Trujillo v. Maass, 312 Ore. 431, 435, 822 P.2d 703 (1991); B ...