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Sako v. Taylor

Court of Appeals of Oregon

June 7, 2017

GREGORY THOMAS SAKO, Petitioner-Appellant,
Jeri TAYLOR, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.

          Argued and Submitted October 13, 2015

         Umatilla County Circuit Court CV130613, Rick W. Roll, Senior Judge.

          Matthew G. McHenry argued the cause for appellant. With him on the briefs was Michael R. Levine.

          David B. Thompson, 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 Sercombe, Presiding Judge, and Hadlock, Chief Judge, and Tookey, Judge. [*]

         Case Summary:

         Petitioner appeals a judgment denying his petition for post-conviction relief from his convictions for first-degree rape and first-degree sexual abuse. He argues that the post-conviction court erred by denying his inadequate assistance of counsel claim based on his trial counsel's (1) failure to seek or obtain medical records from the victim's personal physician and (2) withdrawal of a successful motion to suppress, which permitted the suppressed evidence to be admitted at petitioner's criminal trial.

         Held: The post-conviction court did not err when it determined that petitioner was not prejudiced by trial counsel's failure to request the medical records and withdrawal of the motion to suppress.


         [286 Or.App. 10] SERCOMBE, P. J.

         Petitioner appeals a judgment denying his petition for post-conviction relief from his convictions for first-degree rape, ORS 163.375, and first-degree sexual abuse, ORS 163.427. In the petition, petitioner alleged, among other things, that he was denied constitutionally effective and adequate assistance of trial counsel. In his first assignment of error, petitioner contends that the post-conviction court erred when it concluded that petitioner was not denied adequate assistance of counsel based on its determination that four instances of deficient performance by trial counsel did not prejudice petitioner. We write to address two of those instances, and we conclude that the post-conviction court did not err in determining that petitioner was not prejudiced by trial counsel's deficient performance in (1) failing to seek or obtain medical records from the victim's personal physician and (2) withdrawing a successful motion to suppress.[1]Accordingly, we affirm.

         "We are bound by the post-conviction court's factual findings to the extent they are supported by evidence in the record." Tracy v. Nooth. 252 Or.App. 163, 165, 285 P.3d 745 (2012), adh'd to on recons. 255 Or.App. 435, 299 P.3d 565, rev den, 353 Or. 868 (2013). We state the facts consistently with that standard.

         The underlying criminal charges arose under the following circumstances. Petitioner was charged with first-degree rape, first-degree kidnapping, second-degree kidnapping, and first-degree sexual abuse for an incident that took place in his room at a fraternity house during a Halloween party in October 2008. The victim, dressed in a costume, went to the party with two of her friends after spending time at one of their homes where she consumed some alcoholic beverages; she had also taken Cymbalta, a medication that had been prescribed to her. Partygoers danced in the basement of the fraternity house; the victim danced with and kissed petitioner. Petitioner, who was wearing a green beer bottle costume, appeared to be intoxicated throughout [286 Or.App. 11] the evening and had hash marks drawn on his arm to represent the number of drinks that he had consumed.

         The victim's friends left the basement and went upstairs, and, shortly thereafter, the victim asked petitioner to help her find them. They looked on the main floor of the house and eventually went to the room that petitioner shared with another fraternity member, which was located off of a busy hallway that had heavy foot traffic during the party because it was the route to the bathroom. The walls of the room were thin and the room was not soundproofed in any way. Petitioner and the victim sat on a futon and kissed, which was consensual. The victim testified at the criminal trial that petitioner had asked her to have sex with him and she said no because she had just met him.

         Two fraternity members, Frenkel and Henes, testified that they each, separately, came into the room while petitioner and the victim were there and saw them on the futon. According to the victim, she got up and said that she wanted to leave, but petitioner told her that she "shouldn't leave, " grabbed her wrists, pulled her onto the futon, pushed her onto her back, and then put his forearm over her chest and held her down.[2] She testified that she had told him to stop but that he had pulled up her costume, pulled her underwear to the side, and forced himself inside her with his penis. She testified that she again had told him to stop but he did not. She remembered crying and that "it hurt extremely bad." Blood soaked through her underwear and stained her costume, petitioner's underwear, and the sheet covering the futon. The victim testified that she "eventually got up, and he sat up and he asked [her] to give him a blow job, " which she refused. She then got up, walked to the door, and left the room; petitioner followed right behind her. Witnesses confirmed that they came out of the room together and that both were wearing their costumes.

         The victim testified that, upon leaving petitioner's room, she immediately went downstairs, where she found [286 Or.App. 12] her friends. One of them asked her what was wrong, and she replied, "I think I was raped." Both friends noticed blood on her costume, and one of them testified that the victim "looked shocked and dazed." The victim and her two friends left the party.

         There was testimony at the jury trial that conflicted with the victim's account of her exit from petitioner's room. Three witnesses-Long, Frenkel, and Scheid-testified that they were in the hall talking outside petitioner's door when petitioner and the victim left the room. No one heard anything from the room before petitioner and the victim came out. Frenkel saw the victim adjust the top of her dress; he asked petitioner in a whisper whether anything had happened, and petitioner replied, "No, nothing happened." Petitioner and the victim joined the conversation briefly; the victim did not appear upset, her makeup was not smudged, and she did not look like she had been crying. Long joked about whether petitioner was wearing underwear under his beer bottle costume and lifted up the front of the costume. When he did so, Long, Frenkel, and Scheid noticed blood on petitioner's underwear. Scheid thought that the spot might have been menstrual blood from the victim. Those three then went across the hall into Frenkel's room with petitioner and asked him what had happened. Petitioner told them that the victim was on top of him and that they had been making out, and that was all. When the group came out of Frenkel's room, the victim was no longer in the hallway.

         Later that night, the victim went to the emergency room at the hospital and was examined by a doctor and by a nurse, who performed a rape kit. The examination revealed dried blood and two small tears in the victim's vaginal wall but no deep lacerations or active bleeding. The doctor found some signs that could be consistent with penetration of the vagina but saw no other signs of trauma, such as bruising, typically associated with sexual assault. There was no evidence of menstrual bleeding. At trial, no evidence was presented that linked any of the rape kit collections to petitioner.[3] [286 Or.App. 13] The victim reported to the doctor that she could not remember what had happened and could not say whether there had been anal, oral, or vaginal intercourse. The doctor opined at trial that the victim's inability to recall what had happened was consistent with shock.

         The victim also spoke to a police officer while she was at the hospital. The officer and the doctor both testified at trial that the victim did not show any signs of intoxication; the doctor did not see any reason to order a toxicology test and did not do so. At trial, the victim testified that her prescription medication, Cymbalta, never had any effect on her when she drank alcohol. She also testified that Cymbalta is an antidepressant and a muscle relaxant and that she took it as a muscle relaxant "for a chronic back injury that [she] obtained through 13 years of ballet training."

         The day after the party, Detectives Posler and Houck went to the fraternity house to find petitioner and to execute a search warrant. The search warrant authorized the detectives to search for, seize, and forensically analyze a black futon and a green beer bottle costume. The detectives also seized petitioner's underwear that had blood on it. When one of the detectives found the bloody underwear, petitioner stated, "I might have fingered her." DNA testing matched the blood on petitioner's underwear and the blood on the futon to the victim's DNA profile.

         Petitioner was charged by indictment with, among other things, first-degree rape, ORS 163.375, for "unlawfully and knowingly, by forcible compulsion engag[ing] in sexual intercourse with [the victim], " and with first-degree sexual abuse, ORS 163.427, for "unlawfully and knowingly by means of forcible compulsion subject [ing the victim] to sexual contact by means of forcible compulsion by touching her vagina with [petitioner's] penis, [the victim's] vagina being a sexual or intimate part of [the victim] ."[4]

          [286 Or.App. 14] Prior to the criminal trial, the victim's personal physician, Dr. Crone, was listed on the state's witness list; however, she was ultimately not called to testify as a witness at trial. Petitioner's trial counsel had one document from Crone, which was a letter from Crone to Houck about whether the victim was menstruating at the time of the incident and describing the victim as "a very solid, well grounded young woman." Trial counsel did not consider seeking pretrial production of Crone's medical records regarding the victim; at the time, he did not see the need for any such records.

         Also prior to the criminal trial, petitioner's trial counsel filed a motion to suppress, which was granted. The trial court suppressed petitioner's bloody underwear, forensic evidence obtained from the underwear (a DNA test result matching the blood to the victim's DNA profile), and petitioner's statement about putting his finger inside of the victim. However, trial counsel later became concerned about the possible consequences of keeping the suppressed evidence from the jury and consulted with petitioner about his concerns. Petitioner withdrew the motion to suppress at the start of the criminal trial, in part, ...

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