and submitted May 3, 2017
Washington County Circuit Court C143536CV; Linda Louise
Bergman, Senior Judge.
M. Matthews argued the cause for appellant. With her on the
briefs was Boise Matthews LLP.
L. Jenkins, Assistant Attorney General, argued the cause for
respondent. With her on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Lagesen, Presiding Judge, and Egan, Chief Judge, and Schuman,
Summary: Petitioner, a former elementary school teacher who
was convicted of first-degree rape, two counts of
first-degree sexual abuse, and one count of first-degree
sodomy for conduct involving a student, appeals the
post-conviction court's denial of her petition for
post-conviction relief. Petitioner argues that her trial
counsel rendered inadequate and ineffective assistance of
counsel, in violation of petitioner's rights under
Article I, section 11, of the Oregon Constitution, and the
Sixth and Fourteenth Amendments to the United States
Constitution. Petitioner assigns error to the post-conviction
court's denial of relief of her claims regarding trial
counsel's handling of certain evidence, and contends that
trial counsel's performance did not meet constitutional
standards and that petitioner was prejudiced as a result.
Petitioner also argues that trial counsel's deficiencies,
even if not independently prejudicial, cumulatively warrant
post-conviction relief. Held: The post-conviction
court did not err. Trial counsel's handling of the
evidence either met constitutional standards or, if
deficient, did not prejudice [291 Or.App. 279] petitioner.
The Court of Appeals rejected without discussion
petitioner's cumulative effect argument.
Or.App. 280] LAGESEN, P. J.
a former elementary school teacher, was convicted of one
count of first-degree rape, two counts of first-degree sexual
abuse, and one count of first-degree sodomy for conduct
involving one of her students, C. See State v.
Stephens, 255 Or.App. 37, 39, 296 P.3d 598, rev
den, 353 Or. 868 (2013) (setting forth facts underlying
defendant's convictions). She then petitioned for
post-conviction relief, contending that her trial counsel
rendered inadequate and ineffective assistance of counsel, in
violation of petitioner's rights under Article I, section
11, of the Oregon Constitution and the Sixth and Fourteenth
Amendments to the United States Constitution. The
post-conviction court denied relief. On review for legal
error, Green v. Franke, 357 Or. 301, 312, 350 P.3d
188 (2015), we affirm.
record evidences several factual disputes that the
post-conviction court necessarily resolved in favor of
defendant, the superintendent of the Coffee Creek
Correctional facility, when it denied relief on
petitioner's claims. In conducting our review, we are not
free to revisit the post-conviction court's resolution of
those factual disputes. Instead, we are bound by the
post-conviction court's findings of historical fact if
those findings are supported by evidence in the record.
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, at times noting the factual disputes that were
ran a small alternative elementary school known as Willow
Cottage. C attended the school from 2001 to 2003, for fourth,
fifth, and part of sixth grade. C's younger brother A
also attended the school. During the time that the children
attended the school, C's family became friends with
petitioner's family, and the two families vacationed
together. [291 Or.App. 281] Petitioner's stepfather owned
a cabin at the beach and the two families would sometimes go
to the beach together. C and his brothers would stay with
petitioner and her husband at the cabin, and C's parents
would stay in a separate hotel.
parents withdrew both children from the school in December
2003. They did so because petitioner was demonstrating
favoritism toward C and paying an excessive amount of
attention to him. Before they removed C from the school, a
parent meeting was held at which other parents requested that
petitioner's "favoritism and the excessive attention
being paid to [C] be curtailed and that he be treated in a
way similar to the rest of the children." At that
meeting, one parent asked whether petitioner was having
"inappropriate physical contact" with C. Petitioner
largely remained silent at the meeting, but denied having
inappropriate physical contact with C. However, later, at a
school Christmas party, C's father observed that
petitioner "was continuing to pay excessive amounts of
attention to [C] relative to the other students."
C's father observed petitioner "[h]overing over him,
being close to him, putting her arm around his shoulder. Just
being right next to him a lot more than the other
children." It was after that Christmas party that
C's parents decided to take him out of the school.
weeks or months after C left the school, his mother found a
cell phone and charger in his bedroom, along with a love poem
written by petitioner and signed with a heart and the
notation "32" and photographs of petitioner. She
showed the items to C's father, who put them all in a
manila envelope, which he then sealed and stored in a
safety-deposit box. Neither C's mother nor his father had
given him the cell phone, given him permission to have a cell
phone, or given anyone else permission to give C a cell
five and-a-half years later, when he was 17, C disclosed to
his parents that petitioner had subjected him to sexual
contact on an ongoing basis while he attended the school. C
did so after he told one of his peers about the abuse, and
the friend encouraged him to tell his parents. C waited about
a month, but ultimately decided to tell his parents out of a
desire to "save some kids from going through what I
Or.App. 282] C's parents immediately contacted the
police, and gave them the cell phone and other items that
they had retrieved from C's room and put in the safety
deposit box. When interviewed by police, C told them that,
when he was in fifth and sixth grades, petitioner had
subjected him to "[a]nything from mutual inappropriate
touching to oral sex and sexual intercourse." C
explained that the sexual contact started when the families
were on vacation in central Oregon together and petitioner
started kissing him on the mouth while he was with her at the
house she was staying in. C explained that the sexual contact
continued until C was pulled from the school. Thereafter,
according to C, he and petitioner continued to communicate by
phone. Petitioner also drove to C's house a few times,
and the two would "talk and what not" in the
driveway before C would go to school. Petitioner gave C a
cell phone, which he used to call petitioner for several
weeks, until C's mother found the phone and took it away.
C told officers that petitioner had a birthmark on the lower
part of her body that was in the shape of a heart or a
butterfly. C also told officers that petitioner had given him
the love poem, and that the "32" notation was a
special code for the nine-word phrase "I love you; I
know; I love you too."
C's disclosures, the police interviewed petitioner.
During that interview, which was recorded, petitioner said
that she recalled C, and told detectives that the families
had traveled together, including to the beach and Sunriver.
When told what C had reported, petitioner denied having
sexual contact with C. When asked whether she had bought C a
cell phone, petitioner denied doing so. However, she told the
interviewing detective that she had loaned the phone to C:
"I got my husband a cell phone, and [C] wanted to keep
in touch with me after he had left the Cottage, and I let him
borrow it for a ...