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Johnson v. Myrick

Court of Appeals of Oregon

May 10, 2017

JAMES E. JOHNSON, Petitioner-Appellant,
v.
John MYRICK, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.

          Submitted August 18, 2016

         Umatilla County Circuit Court CV131188; Jack A. Billings, Senior Judge.

          Jed Peterson and O'Connor Weber LLP fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Rebecca M. Auten, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.

         Case Summary: Petitioner appeals from a judgment denying his petition for post-conviction relief from convictions for various sexual offenses arising from his abuse of his girlfriend's three daughters-A, K, and T-over the course of several years. He assigns error to the post-conviction court's denial of relief on his claim that his trial counsel rendered constitutionally inadequate and ineffective assistance of counsel, in violation of petitioner's rights under Article I, section 11, of the Oregon Constitution, and the Sixth Amendment to the United States Constitution, when counsel did not object to the admission of evidence that petitioner's abuse of A began in Tennessee, before the family moved to Oregon. Specifically, petitioner contends that trial counsel was inadequate and ineffective for not raising OEC 403 and 404 objections to the evidence of the abuse occurring in Tennessee and, he contends that trial counsel was inadequate and ineffective for not requesting a limiting instruction addressing the evidence. Held: Below petitioner only generically asserted that trial counsel was inadequate and ineffective for not objecting to the evidence about the Tennessee abuse, at no point did he identify any particular objection that he thought trial counsel should have made, or otherwise develop an argument to support his claim; therefore, the post-conviction court did not err when it rejected petitioner's claim on the basis that petitioner had not set forth any legal reason which would have supported an objection by counsel. Additionally, petitioner's argument that counsel was inadequate and ineffective for not requesting a limiting instruction addressing the evidence about the abuse in Tennessee cannot be a basis for reversal because it was not pleaded in his petition (or amended petition).

         Affirmed.

          LAGESEN, J.

         Petitioner appeals from a judgment denying his petition for post-conviction relief from convictions for various sexual offenses arising from his abuse of his girlfriend's three daughters-A, K, and T-over the course of several years. He assigns error to the post-conviction court's denial of relief on his claim that his trial counsel rendered constitutionally inadequate and ineffective assistance of counsel, in violation of petitioner's rights under Article I, section 11, of the Oregon Constitution, and the Sixth Amendment to the United States Constitution, when counsel did not object to the admission of evidence that petitioner's abuse of A began in Tennessee, before the family moved to Oregon. For the reasons that follow, we affirm.

         Petitioner was convicted of two counts of second-degree rape, ORS 163.365; nine counts of first-degree sexual abuse, ORS 163.427; and four counts of second-degree sexual abuse, ORS 163.425. At his criminal trial, the state introduced evidence that petitioner's abuse of A began in Tennessee, where the family had lived before moving to Oregon. K recounted that she inadvertently witnessed petitioner engaged in sexual contact with A while they were in Tennessee, and A testified generally that petitioner's abuse had started in Tennessee and continued over an extended period of time, including after the family moved to Oregon. Other witnesses also testified that A had told them that petitioner's abuse of her began in Tennessee. Trial counsel did not object to the admission of that evidence, or request that the court provide a limiting instruction to the jury on how it could take the evidence into account.

         After an unsuccessful appeal, petitioner initiated this proceeding. Pertinent to his assignment of error, the operative post-conviction petition alleged:

"Trial counsel *** failed to file a motion or otherwise object at trial when the State utilized evidence of sexual abuse which had occurred outside of Marion County, Oregon. In particular, trial counsel should have objected to any claims arising from incidents which were alleged to have occurred in the State of Tennessee. The Tennessee allegations were presented on several occasions during trial, including during the State's opening statements * * * and during [A's] testimony * * *. As a result, Petitioner was required during his own direct testimony to refute those allegations which were related to Tennessee (but had not been charged against Petitioner in the State's Indictment)."

         Petitioner did not develop any argument in support of that claim. The argument section of his trial memorandum simply quoted the claim as alleged and represented that "[p] etitioner may elect to testify about this claim at his postconviction relief trial." At the post-conviction trial, petitioner did not further elaborate on the claim and, in particular, did not specify the particular objections that petitioner thought trial counsel should have raised with respect to the evidence about the Tennessee abuse allegations.[1]

         The post-conviction court denied relief. Regarding petitioner's claim that trial counsel was inadequate and ineffective for not objecting to the admission of evidence about the abuse ...


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