and submitted March 17, 2016
County Circuit Court 1304179P; J. Burdette Pratt, Senior
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
Peterson argued the cause for respondent. With him on the
brief was O'Connor Weber LLP.
Armstrong, Presiding Judge, and Egan, Judge, and Shorr,
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
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
Or.App. 308] EGAN, J.
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.
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.
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.
of that CARES interview was offered as an exhibit at trial.
The complainant, who was 12-years old at the time of trial,
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
"[STATE]: Okay. She made an allegation of essentially
oral sodomy or oral sexual activity? ...