Argued and Submitted: April 15, 2014.
Umatilla County Circuit Court. CV100864. Linda Louise Bergman, Senior Judge.
Jason Weber argued the cause and filed the brief for appellant.
Ryan Kahn, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before DeVore, Presiding Judge, and Sercombe, Judge, and Garrett, Judge.
[265 Or.App. 713] DEVORE, P. J.
In this post-conviction case, we are asked to decide whether petitioner's counsel was inadequate in choosing an " all or nothing" strategy in defending petitioner rather than requesting a jury instruction on a lesser-included offense. Petitioner appeals a judgment denying his petition for post-conviction relief. He argues that his attorney's failure to request a jury instruction on a lesser-included offense resulted in a conviction on a more serious offense with a longer prison sentence. Petitioner was acquitted of charges of burglary and attempted rape, but he was convicted by a jury of first-degree sexual abuse, ORS 163.427. The court imposed a mandatory minimum sentence of 75 months' imprisonment. If, instead, he would have been convicted of third-degree sexual abuse, ORS 163.415(1)(a), arguably a lesser-included offense, then the maximum imprisonment would have been 12 months, ORS 161.615(1) (Class A misdemeanor).
On review for errors of law, Monahan v. Belleque, 234 Or.App. 93, 95, 227 P.3d 777, rev den, 348 Or. 669, 237 P.3d 824 (2010), we affirm. We are bound by a post-conviction court's factual findings if they are supported by evidence in the record. Wyatt v. Czerniak, 223 Or.App. 307, 311, 195 P.3d 912 (2008). If the post-conviction court did not expressly make factual findings, and if there is evidence from which the facts could be decided more than one way, we will presume that the facts were decided in a manner consistent with the court's ultimate conclusion. Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968).
[265 Or.App. 714] The jury heard conflicting versions of an encounter in 2006 between petitioner and his 15-year-old neighbor. That encounter led to charges of first-degree sexual abuse " by means of forcible compulsion," ORS 163.427(1)(a)(B); first-degree burglary, ORS 164.225; and attempted first-degree rape, ORS 161.405 and ORS 163.375. The central issue at trial was whether the state could prove that petitioner had used " forcible compulsion."  On that point, the trial proved to be a credibility contest between the victim and petitioner.
The victim testified that, early one morning, petitioner entered her apartment without permission while she was getting ready for school. She recalled that, although she tried to push him away, petitioner hugged her and, without her consent, repeatedly kissed her on the mouth and neck. She eventually freed herself and moved toward the bedroom door, but, she said, petitioner threw her down on the bed, continued kissing her on the mouth and neck, and touched her back underneath her clothes. When she told him that her sister would return home shortly, petitioner left. On cross-examination, she testified that she had not cried out, pounded
on the walls, or otherwise called for help during the incident.
Petitioner testified that he and the victim were acquaintances, that she had babysat for his children, and that she had flirted with him in the past. He said that they had agreed that he would stop by her apartment that morning to retrieve some DVDs that she had borrowed. When petitioner rang the doorbell, she told him to come in and seemed happy to see him. They hugged, he kissed her on the cheek, and they laid down on the bed, where he kissed her on the neck. In his view, the victim acquiesced and never struggled to get away. At no time, petitioner testified, did he force himself upon her. He did not admit to touching her back. He concurred that, when the victim said that her sister would return home, he left. To support his testimony, petitioner's [265 Or.App. 715] defense attorney called witnesses to testify that the victim had previously flirted with him and that he had a reputation for honesty and peacefulness in the community. In closing argument, his attorney questioned the victim's credibility and noted ...