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Nemecek v. Taylor

Court of Appeals of Oregon

May 31, 2018

MICHAEL NEMECEK, Petitioner-Appellant,
v.
Jeri TAYLOR, Superintendent, Eastern Oregon Correctional Institution, Defendant-Respondent.

          Argued and submitted March 20, 2017

          Umatilla County Circuit Court CV140239; A159420 Rick J. McCormick, Senior Judge.

          Jason L. Weber argued the cause for appellant. With him on the brief was O'Connor Weber LLP.

          David B. Thompson, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

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

         Case Summary:

         Petitioner appeals a post-conviction court's judgment denying him relief from his convictions of first-degree rape, ORS 163.374, and first-degree sexual abuse, ORS 163.427. Petitioner sought post-conviction relief, contending that his trial counsel's failure to ensure that the jury was correctly instructed on his affirmative defense deprived him of his right to adequate and effective assistance of counsel guaranteed by Article I, section 11, of the Oregon Constitution, and the Sixth Amendment to the United States Constitution. The post-conviction court denied relief, concluding that, although petitioner's trial counsel was constitutionally inadequate for failing to except to the jury instruction as read by the court, that inadequacy did not prejudice petitioner. On appeal, petitioner contends that the post-conviction court erred in denying him relief on the ground that his “trial counsel was constitutionally inadequate and ineffective because he failed to ensure that the jury was correctly instructed on the law.” Held: Petitioner was not prejudiced by trial counsel's failure to object or take exception to the trial court's oral jury instruction. There was evidence in the [292 Or. 59] record that the jury received petitioner's written instruction relating to his affirmative defense. Additionally, petitioner's trial counsel introduced the affirmative defense to the jury, and the trial court's oral instruction explained to the jury that petitioner was asserting the defense, provided the jury with the elements of the affirmative defense, and explained petitioner's burden of proof.

         Affirmed.

          [292 Or. 60] TOOKEY, J.

         Petitioner appeals a post-conviction court's judgment denying him relief from his convictions of first-degree rape, ORS 163.375, and first-degree sexual abuse, ORS 163.427. Petitioner sought post-conviction relief, contending that his trial counsel's failure to ensure that the jury was correctly instructed on his affirmative defense deprived him of his right to adequate and effective assistance of counsel guaranteed by Article I, section 11, of the Oregon Constitution, and the Sixth Amendment to the United States Constitution. The post-conviction court denied relief, concluding that, although petitioner's trial counsel was constitutionally inadequate, that inadequacy did not prejudice petitioner. For the reasons that follow, we affirm.

         BACKGROUND

         At petitioner's criminal trial, the state adduced the following evidence. Petitioner and the victim shared an apartment with their respective children and another adult, Aguilar. On the evening of the events giving rise to petitioner's convictions, the victim's children and petitioner's child were not in the apartment that they shared. Following a night out with her friends, the victim, who had been drinking, called her roommate Aguilar around 3:00 or 4:00 a.m. and asked for Aguilar's help getting into the apartment from the complex's parking lot. Aguilar helped the victim into the apartment, where the victim-fully clothed-immediately fell asleep on top of her bed. Subsequently, Aguilar went to sleep on her bed, which was adjacent to the victim's bed.

         At approximately 4:00 a.m., Aguilar woke up and heard the victim moaning. Aguilar saw that petitioner was on top of the victim. Petitioner left the room a few minutes later. Aguilar became upset that the victim and petitioner had had sex while she was in the room. Aguilar asked the victim whether she was going to work, which began at 6:00 a.m. When the victim did not respond, Aguilar attempted to wake the victim by shaking her. After a few minutes, the victim awoke and Aguilar asked why petitioner had been in the bedroom and on top of the victim. The victim was unsure of what Aguilar was talking about, and then the victim realized that her body was exposed and she "felt as if [292 Or. 61] [she] * * * had had relations." At that point, the victim called the police, and when the police arrived, she told them that she had been raped. Following a medical examination, DNA found in the victim's cervix and vagina matched petitioner's DNA.

         In his defense at trial, petitioner contended that, although the victim was intoxicated, she had not been physically helpless when they had had consensual sex. Petitioner testified that he had been asleep when the victim came to his room, called his name, and invited him to follow her to her bedroom, and that, petitioner had then followed the victim into her bedroom where he and the ...


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