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Smith v. Franke

Court of Appeals of Oregon

October 22, 2014

TERRY DARRELL SMITH, Petitioner-Appellant,
v.
STEVE FRANKE, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent

Submitted: March 11, 2014.

Umatilla County Circuit Court. CV101060. Linda Louise Bergman, Senior Judge.

James N. Varner filed the opening brief for appellant. Terry Darrell Smith filed the supplemental brief Pro se.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent.

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

OPINION

Page 987

[266 Or.App. 474] SERCOMBE, P. J.

Following a jury trial, petitioner was convicted of first-degree sodomy, ORS 163.405, first-degree sexual abuse, ORS 163.427, and using a child in a display of sexual conduct, ORS 163.670.[1] He subsequently filed a petition for post-conviction relief, alleging, among other things, that his trial attorney was constitutionally inadequate in failing to object when a police officer testified that the alleged victim knew the difference between the truth and a lie. The post-conviction court denied the petition, and petitioner appeals the resulting judgment, asserting that counsel was constitutionally inadequate in failing to object to what petitioner asserts was " improper vouching testimony of a state's officer witness." In his pro se supplemental brief petitioner also raises three additional assignments of error which we reject without discussion. We affirm on petitioner's remaining assignment of error because we conclude that petitioner's trial counsel did not render constitutionally inadequate assistance in failing to object to the testimony at issue.

We state the facts consistently with the findings of the post-conviction court, which are binding on us to the extent that there is evidence in the record to support them. Logan v. State, 259 Or.App. 319, 321, 313 P.3d 1128 (2013). To the extent that the post-conviction court did not make explicit findings, we state the facts in a manner consistent with its ultimate conclusion. See Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968).

The charges against petitioner in the underlying criminal trial related to petitioner's sexual abuse of his eight-year-old daughter, S, while she visited him during the summer. In particular, petitioner and his wife, who both lived overseas, came to Oregon for the summer in 1999 and spent time camping and visiting with S and petitioner's older daughter, C. On a number of occasions during their visit, petitioner sexually abused S and, on one of those occasions, petitioner took sexually explicit photographs of S.

[266 Or.App. 475] A couple of weeks after the conclusion of the visit, S disclosed the sexual abuse to her mother, Brooks. Both S and C were interviewed at the Child Advocacy Center by

Page 988

Bedell, a detective with the Oregon State Police.

Petitioner was later indicted for, among other things, two counts of first-degree sodomy, one count of first-degree sexual abuse, and one count of using a child in a display of sexually explicit conduct. However, at that time, defendant was outside of the United States and he was not arrested until ...


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