HOMER D. SARTIN, aka Homer David Sartin, Petitioner-Appellant,
Jeri TAYLOR, Superintendent, Two Rivers Correctional Institution, Defendant-Respondent.
Submitted June 21, 2016
County Circuit Court CV120968 Joseph C. Guimond, Senior
Peterson and O'Connor Weber LLP fled the brief for
F. Rosenblum, Attorney General, Paul L. Smith, Deputy
Solicitor General, and Greg Rios, Assistant Attorney General,
fled the brief for respondent.
DeVore, Presiding Judge, and Hadlock, Judge, and James,
who was convicted of first-degree sexual abuse and invasion
of personal privacy, appeals a judgment denying his petition
for post-conviction relief. On appeal, he argues that the
post-conviction court erred by rejecting his claim that, both
at trial and on appeal, he was denied the effective
assistance of counsel, guaranteed by Article I, section 11,
of the Oregon Constitution, and the Sixth and Fourteenth
Amendments to the United States Constitution. He argues that
his lawyers did not exercise reasonable professional skill
and judgment when they each failed to challenge the admission
of certain testimony on the ground that it was inadmissible
post-conviction court did not err by rejecting
petitioner's claims for relief. Petitioner's trial
lawyer objected to testimony that one of the victims had been
"coached" in an interview, and petitioner did not
explain what more his lawyer should have done after the trial
court admitted the testimony for a limited purpose. Further,
not every lawyer exercising reasonable professional skill and
judgment would have understood the testimony about "no
contact" treatment [290 Or. 64] recommendations for the
victims to necessarily be based on abuse diagnoses, thereby
constituting impermissible "vouching" testimony.
Finally, petitioner failed to establish that, in his direct
appeal, the Court of Appeals probably would have concluded
that the trial court plainly erred in admitting the testimony
about "no contact" treatment recommendations.
Or. 65] HADLOCK, J.
was convicted of sexually abusing a young girl and of
invading the personal privacy of her teen-aged sister. After
his convictions were affirmed on direct appeal, petitioner
sought post-conviction relief, alleging that he had been
denied constitutionally adequate assistance of counsel both
at trial and on appeal because his lawyers had not challenged
the admission of certain testimony on the ground that it was
inadmissible "vouching" evidence. The
post-conviction court denied relief on those claims. On
appeal from the judgment denying post-conviction relief, we
explained in more detail below, we write to address only a
limited number of the issues that petitioner raises on
appeal. We therefore do not comprehensively describe the
events that led to petitioner's convictions and to the
denial of his petition for post-conviction relief. Instead,
we summarize only those facts pertinent to the issues that we
address in this opinion; we do so in a manner consistent with
the post-conviction court's implicit and explicit factual
lived with his girlfriend, Goings, and her two daughters,
16-year-old M and 7-year-old S. Goings and the girls'
father were divorced. In early February 2010, M told her
grandmother and her father's girlfriend, Foster, that
petitioner had been touching her breasts. Foster alerted
police the following day and an investigation ensued. A
detective, McCuistion, interviewed M, S, and their mother at
the family's home after petitioner had been taken to a
police station. M was very upset and said she
"couldn't believe that they had * * * told the
police." M repeatedly expressed worry about how angry
her mother would be at her; she also said "that they had
just kind of exaggerated it and thought the worst and * * *
she just didn't want to be taken away from her mom."
However, M also reported having been abused by petitioner,
telling McCuistion that petitioner had intentionally touched
her on the vagina when she was in the eighth grade. M also
reported that she had seen adult pornography on
Or. 66] McCuistion also questioned S, who did not disclose
any abuse at that point. When McCuistion asked S whether a
big person had ever touched her private areas, she looked at
McCuistion for 25 to 30 seconds, with tears welling up in her
eyes, then said that her dog is white.
McCuistion told Goings that M had confirmed some of the
reported abuse, Goings did not exhibit any emotion or make
any statements indicating concern. However, the Department of
Human Services (DHS) planned at that point that the children
could remain with their mother, who "was going to be
protective of the children."
thereafter, M was evaluated at Juliet's House, which was
described as a "local child advocacy and abuse center
for children, where they provide medical and physical
examinations and also forensic child interviews." M was
interviewed by a counselor, Warner; she also was evaluated by
a physician, Sandberg, who did not discover any significant
abnormalities during M's physical examination. During the
Juliet's House evaluation, M stated that petitioner had
sexually abused her on three occasions "with his hand to
the genital area, " both above and beneath her clothing.
M also talked about Goings, saying that "her mom would
become suicidal" if M and S were removed from her care.
"[O]ver and over again, " M expressed concern that
she was going to be taken away from her mother, who M did not
think could survive without her children. M told Warner that
she had "regularly" asked S if petitioner had ever
touched her, but S had always said no. M also said that she
was afraid that S "was going to say something that would
get herself in trouble and their mom, and that the kids would
end up being taken away."
result of his medical examination of M, Sandberg made
treatment recommendations that included no contact with
petitioner, child counseling, and family counseling because
"there seemed to be a lot of emotional turmoil in the
family and ...