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Bohnenkamp v. State

Court of Appeals of Oregon

August 29, 2018

VIRGIL KEITH BOHNENKAMP, JR., Petitioner-Appellant,
v.
STATE OF OREGON, Defendant-Respondent.

          Argued and Submitted November 21, 2017

          Multnomah County Circuit Court 15CV14720; Linda Louise Bergman, Senior Judge.

          Kenneth A. Kreuscher argued the cause and fled the brief for appellant.

          Jacob Brown, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Petitioner appeals a judgment denying his petition for post-conviction relief from his conviction for aggravated theft. He assigns error to the post-conviction court's rejection of his claim that his trial counsel rendered constitutionally inadequate and ineffective assistance of counsel, in violation of his rights under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution when counsel did not contest the admissibility of out-of-court statements by petitioner's nephew in a complete and thorough manner. The post-conviction court determined that trial counsel performed deficiently in contesting the admissibility of the evidence and that the evidence should have been excluded, but that the admitted evidence did not prejudice petitioner because it was only a "minor factor" in the trial court's determination of guilt. Held: The post-conviction court erred. The trial court's speaking verdict, when considered in its entirety in the context of the whole record, belies the post-conviction court's conclusion that the admitted statements were a "minor factor" in the court's decision.

         [293 Or.App. 552] Reversed and remanded with instructions to grant petitioner post-conviction relief on his conviction for aggravated theft

         [293 Or.App. 553] LAGESEN, P.J.

         Petitioner appeals a judgment denying his petition for post-conviction relief from his conviction for aggravated theft. He contends that the post-conviction court erred by rejecting his claim that his trial counsel rendered constitutionally inadequate and ineffective assistance of counsel, in violation of his rights under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution when counsel did not competently contest the admissibility of out-of-court statements by his nephew implicating him in the crime. We agree. We therefore reverse and remand for entry of judgment granting the petition for post-conviction relief.

         The parties do not dispute the pertinent facts. We therefore review the post-conviction court's denial of relief for legal error. Green v. Franke, 357 Or. 301, 312, 350 P.3d 188 (2015).

         The facts are as follows: A 414-pound metal furnace coil disappeared from a graphite manufacturing company. Police located the coil at a metal recycling company. That company reported that it had purchased it from a woman, Ephrem. Ephrem, in turn, told police that the coil came into her hands via a sale from someone named Nate and someone named Virgil (petitioner's first name). She described the person named Virgil as a 45- to 50-year-old white male who was 5'8" tall, "real skinny, sick looking" with "salt and pepper hair" that was "stringy." (Petitioner was a little younger and not aptly described as "real skinny") Ephrem said that "Virgil" used a phone that he said belonged to his girlfriend, "Tula," that he drove a white compact pickup, and that Ephrem had contacted him at an address on Foster Road in Damascus, which she gave to police. (Petitioner had a girlfriend named Tula and drove a blue-and-silver pickup. The address in Damascus belongs to petitioner's family.) When shown a photograph of petitioner, Ephrem thought that petitioner could be the "Virgil" who had sold her the coil, but was not sure. Ephrem easily identified the person named "Nate" in a photograph.

         The investigating detective, Storagee, went to the address that Ephrem provided. There, he met petitioner's [293 Or.App. 554] father (also named Virgil), petitioner's sister, petitioner's brother-in-law, and petitioner's nephew, Miller. When Storage e interviewed Miller, Miller told Storagee that "he had helped [petitioner] and two women load a large copper ring and some * * * five-foot-long pieces of stainless steel pipe into his truck" around the time the coil went missing from the graphite manufacturing company.

         Petitioner was charged with aggravated theft. He waived a jury and was tried in a bench trial. Ephrem testified and identified petitioner in court as the person who had sold her the coil, although she acknowledged that he did not much resemble the description she previously had given. Miller could not recall either the incident or his statements to Storagee, apparently because of the effect of a prior head injury on both his long-term and short-term memory. The state then sought to admit, through Storagee's testimony, Miller's previous statements about assisting petitioner in loading the copper ring into the truck. Petitioner's trial counsel raised a hearsay objection, to which the trial court responded, "Well, haven't we sort of established that the previous witness has no clue?"[1] Agreeing with that point, trial counsel did not pursue the objection any further, and ...


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