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Alne v. Nooth

Court of Appeals of Oregon

October 18, 2017

ALAN ALNE, Petitioner-Respondent,
v.
Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Appellant.

          Argued and submitted March 17, 2016

         Malheur County Circuit Court 1304179P; J. Burdette Pratt, Senior Judge.

          Ryan Kahn, Assistant Attorney General, argued the cause for appellant. With him on the brief were Frederick M. Boss, Deputy Attorney General, and Anna M. Joyce, Solicitor General.

          Jed Peterson argued the cause for respondent. With him on the brief was O'Connor Weber LLP.

          Before Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

         Case Summary:

         The superintendent appeals the post-conviction court's judgment granting petitioner post-conviction relief and setting aside his sex-abuse-related convictions. The superintendent argues that the post-conviction court erroneously concluded that the performance of petitioner's trial counsel was constitutionally inadequate because counsel failed to object to testimony by a state's witness commenting on the credibility of the child complainant.

         Held:

         The post-conviction court did not err when it granted petitioner post-conviction relief. Trial counsel's performance was constitutionally inadequate under the state and federal constitutions because counsel failed to exercise reasonable professional skill and judgment by not objecting to the witness's vouching testimony and because petitioner suffered prejudice as a result of counsel's failure to object.

         Affirmed.

         [288 Or.App. 308] EGAN, J.

         In this post-conviction relief case, the superintendent appeals the post-conviction court's judgment granting petitioner relief and setting aside his convictions for sodomy in the first degree, ORS 163.405; unlawful sexual penetration in the first degree, ORS 163.411; and sexual abuse in the first degree, ORS 163.427. The superintendent argues that the post-conviction court erroneously concluded that petitioner's trial counsel's failure to object to testimony by a state's witness commenting on the credibility of the complainant rendered his performance constitutionally inadequate. We affirm.

         We review the post-conviction court's grant of relief for legal error. Green v. Franke, 357 Or. 301, 312, 350 P.3d 188 (2015). The post-conviction court's express and implicit factual findings are binding if there is evidence to support them. Id. "If the post-conviction court failed to make findings of fact on all the issues-and there is evidence from which such facts could be decided more than one way-we will presume that the facts were decided consistently with the post-conviction court's conclusions of law." Id. We state the facts in accordance with that standard.

         The charges against petitioner stemmed from statements that a nearly five-year-old girl, the complainant, made to her father. She alleged that petitioner had touched her vagina with his fingers and mouth when petitioner was babysitting the complainant while her parents were out of the house. The complainant was taken to CARES for an evaluation and was interviewed by Thomas Findlay and a doctor.

         A video of that CARES interview was offered as an exhibit at trial. The complainant, who was 12-years old at the time of trial, [1] testified that petitioner touched her genitals with his finger and tongue. Findlay, who had been a child interviewer for CARES for 10 years, also testified for the state. He testified that he had a master's degree in social work, which was required to be an interviewer. He also [288 Or.App. 309] testified that he was a licensed clinical social worker and had personally conducted over 2, 000 child abuse evaluations, of which 1, 500 involved videotaped interviews. Portions of his video-recorded interview with the complainant were played during his testimony, and he was asked to comment on those portions. During direct examination, the state asked Findlay whether the words and descriptions of the acts alleged by the complainant were appropriate for a child her age.

"[STATE]: Okay. She made an allegation of essentially oral sodomy or oral sexual activity? ...

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