Argued and submitted November 3, 2014
On review from the Court of Appeals. [*] CC CV110230; CA A150877
Ryan Kahn, Assistant Attorney General, Salem, argued the cause and filed the briefs for petitioner on review. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Jason E. Thompson, Ferder Casebeer French & Thompson, LLP, Salem, argued the cause and filed the brief for respondent on review.
Petitioner brought this action for post-conviction relief after his criminal trial counsel failed to request that the trial court instruct the jury that, in a trial concerning multiple charges and multiple victims, it must consider the evidence concerning each alleged victim separately and only as that evidence pertained to a specifc charge or charges relating to that victim. The post-conviction court did not decide whether failing to request the limiting instruction was inadequate assistance, but determined that petitioner was not prejudiced because, even if the limiting instruction had been given, the result would not have been different. The Court of Appeals reversed, holding that there was no evident downside to requesting the limiting instruction but the upside was great-the jury would not convict petitioner based on improper propensity inferences. Held: (1) in light of Pereida-Alba v. Coursey, 356 Or 654, 342 P.3d 70 (2015), the Court of Appeals applied an incomplete, and therefore erroneous, standard in determining that petitioner's trial counsel performed inadequately by failing to request a limiting instruction; (2) the case must be remanded so that the post-conviction court can determine under the correct standard whether petitioner's trial counsel performed inadequately in failing to seek a limiting instruction; and (3) in cases where the effect of inadequate assistance of counsel on the outcome of a jury trial is at issue, the proper prejudice standard is whether trial counsel's acts or omissions could have tended to affect the outcome of the case.
A jury convicted petitioner of eighteen sex offenses involving nine victims, ages twelve through seventeen. After an unsuccessful direct appeal, petitioner sought post-conviction relief, alleging that his trial counsel's performance had not satisfied the minimum requirements demanded by the Oregon and United States Constitutions. Among other claims, petitioner alleged in his pleading that counsel performed inadequately by failing to request an instruction directing the jury to consider the evidence concerning each alleged victim separately and only as that evidence pertained to a specific charge or charges relating to that victim. The post-conviction court entered a judgment denying post-conviction relief.
The Court of Appeals reversed. Green v. Franke, 261 Or.App. 49, 323 P.3d 321 (2014). It reasoned that "there was no evident downside to requesting such an instruction; the upside, however, was plain: The jury would have been prohibited from concluding that petitioner had committed the charged acts based on a belief that he had a propensity to commit such acts." Id. at 58. The Court of Appeals further concluded that petitioner was prejudiced by counsel's omission because the jury was encouraged by the prosecutor, and permitted by defense counsel's failure to obtain a limiting instruction, to rely on impermissible propensity inferences in its consideration of most of the charges. Id. at 67-68. We allowed the state's petition for review to consider the recurring issues of what a postconviction petitioner must show to establish inadequate performance of counsel and what a petitioner must prove to establish that counsel's inadequate performance prejudiced the petitioner's case. We now reverse the decision of the Court of Appeals, and we reverse and remand the judgment of the post-conviction court denying post-conviction relief on petitioner's instructional claim while otherwise affirming that judgment.
PROCEDURAL HISTORY AND FACTS
The state charged petitioner with sex offenses against nine victims committed over the course of approximately five years. The victims were girls ranging in age from 12 to 17 years old. Some of the charges were based on sexual contact that, although "consensual" in a colloquial sense, was without lawful consent due to the ages of the victims (in particular, the charges involving victims KN, MZ, and CO). But the majority of the crimes were based on either a theory of forcible compulsion or on lack of consent (specifically, the charges involving victims SB, DH, CH, JA, BB, and RM).
Before petitioner's criminal trial, counsel did not move to sever the charges against petitioner for purposes of trial. By the time of trial, counsel knew that petitioner had acknowledged to police and to an underage girlfriend that he had, in fact, had sex with some of the victims. Petitioner also admitted to counsel that he had had sex with several of the victims. Petitioner insisted, however, that those encounters were consensual, not forcible. Given that information, counsel did not believe that he could mount a plausible defense to the charges involving "consensual" sex-that is, the charges that were based solely on the victims' ages. Thus, he decided to concede to the jury that petitioner had committed the charged crimes against KN, MZ, and CO. Counsel decided, instead, to focus his efforts on the charges involving the other victims, all of which depended on proof that petitioner had engaged in sexual contact either using forcible compulsion or without their actual consent. Counsel's theory on the majority of those charges was that, although petitioner may have had sex with several of the girls, he did so only with their consent. Counsel did not concede, however, that petitioner had sex with JA or BB. His defense to the charges involving those victims was that no sexual contact occurred.
At trial, the state did not argue that evidence relating to any one of the joined charges was relevant to prove any other charge. However, all the charges were tried to a jury in a single trial. The state called each of the victims to testify about their interactions with petitioner and about sexual acts that he committed against them. Three of the victims described consensual sex with petitioner, and the other six testified that petitioner against their will touched their sexually intimate parts, caused them to touch his sexually intimate parts, or-in the case of the five first-degree rape charges-forcibly compelled them to have sexual intercourse while they either resisted or told him to stop. The state also called police detectives and other witnesses to testify about statements that the victims had made to them.
Petitioner's counsel cross-examined the victims and other witnesses in an attempt to emphasize evidence showing that any sexual contacts that petitioner had with the victims were, in fact, consensual. Counsel stressed that type of evidence on cross-examination even if the charge otherwise was uncontested. Counsel also attempted to persuade the jury that several of the victims were connected to each other and, to some extent, that the evidence about their allegations should be considered together. Counsel did that in two primary ways. First, he pointed out that some of the victims knew each other, either in general or in how they came to report their allegations to police. As an example, during his opening statement, counsel told the jury:
"I think detectives are going to testify that Detective Fryett was making one investigation and Detective Young was making another investigation over here, but the majority of these girls really do know each other. And it's-it started out that there were two victims, and then [petitioner] was on TV, and all of a sudden there's now nine victims. [The prosecutor] said he thinks the evidence is going to show that these people didn't know each other; these girls didn't know each other very much. But I think the testimony is going to come out that they really did know each other, a lot of them."
In his closing argument, counsel suggested a possible motive for a particular victim (JA) to have fabricated a charge of rape:
"Does [JA's allegation] make any sense? I submit that it does not, because the rape of her did not happen. I don't know why she's lying. I don't have any idea. But I can tell you whether all these girls knew each other before, they all know each other now. And if you don't think the detectives and the Victims' Assistance [office] have talked to these people, that's nonsense. They've talked to these girls, they've gotten them ready for trial, and they came and testified."
The second way in which counsel attempted to connect evidence involving different victims was by contrasting certain victims' allegations with what other victims had reported. For example, counsel elicited differences between the circumstances that CH and SB had reported, and he generally noted how the reports of some victims did not fit the "pattern" of what other victims reported. Counsel repeated that theme in closing argument, telling the jury that RM's report was "out of the pattern of what some of these other folks have said."
For its part, the state emphasized in closing argument that the resolution of disputed factual issues in the case required a credibility assessment:
"Now, in hearing from many of the victims, it's a matter of assessing credibility. And when you go into the jury room to deliberate, we're not asking you to leave your common sense outside the door. We ask you to draw upon your experience as human beings in assessing credibility."
The prosecutor then explained why the jury should find each victim credible. Referring to evidence that petitioner had attempted to influence the testimony of certain witnesses, the prosecutor argued that,
"when you look at [petitioner's] statements during the course of this trial, and of the investigation, and his tampering with witnesses, they really give you insight into his sexual assaults. And they parallel his predatory nature."
The prosecutor continued:
"He's assaulting victims while they're sleeping and vulnerable. [SB] and [DH]. He takes the victims by swift attack. [RM], [JA], and [CH]. He takes the victims through manipulation or subtle forms of coercion. [BB] and [KN]. He offers reassurance to each victim, or tries to make them believe that they want it."
The jury ultimately convicted petitioner of all of the charges, including the charges based on a theory of forcible compulsion and lack of actual consent. After an unsuccessful direct appeal, petitioner filed this action for post-conviction relief, asserting several claims of inadequate assistance of trial counsel. The amended petition for post-conviction relief set out 12 allegations specifying the ways that petitioner claimed his counsel's representation in his criminal trial was constitutionally ...