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Drown v. Persson

Court of Appeals of Oregon

November 7, 2018

ROBYN KAY DROWN, Petitioner-Appellant,
v.
Rob PERSSON, Superintendent, Coffee Creek Correctional Facility, Defendant-Respondent.

          Argued and submitted October 26, 2017

          Washington County Circuit Court C126023CV; Linda Louise Bergman, Senior Judge.

          Jed Peterson argued the cause for appellant. Also on the brief was O'Connor Weber LLC.

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

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary:

         Petitioner appeals the denial of her petition for post-conviction relief from her convictions for 12 counts of second-degree assault and two counts of fourth-degree assault. Petitioner asserts that the post-conviction court erred in denying her relief based on her trial counsel's deficient performance. Specifically, she argues that counsel's failure to object to the court's issuance of an erroneous "natural and probable consequence" jury instruction in connection with the state's theory of accomplice liability constituted constitutionally inadequate assistance.

         Held:

         The post-conviction court did not err in denying petitioner relief because petitioner failed to establish that counsel's purportedly deficient performance prejudiced her.

         Affirmed.

         [294 Or.App. 755] DEHOOG, P. J.

         Petitioner appeals the denial of her petition for post-conviction relief from her 2008 convictions for 12 counts of second-degree assault and two counts of fourth-degree assault. Petitioner raises three challenges to the post-conviction court's ruling, each asserting that the court erred in denying her relief based on her trial counsel's deficient performance. We write only to address petitioner's first assignment of error, relating to trial counsel's failure to object to the trial court's issuance of an erroneous "natural and probable consequence" jury instruction in connection with the state's theory of accomplice liability[1] As we explain below, petitioner has failed to establish that counsel's purportedly deficient performance prejudiced her; accordingly, we affirm.

         In 2008, petitioner and her husband, Drown, lived with their nine youngest children, who ranged in age from a few months to 16 years old. Drown physically abused petitioner, and both Drown and petitioner resorted to corporal punishment to discipline their children. That practice led to petitioner's prosecution for 14 counts of second-degree assault based on the use of various objects-including a board and a tent pole-to punish the seven older children.[2]As we described in our earlier decision:

"[Petitioner] and Drown were tried together, before a jury. In support of the assault counts, the state presented evidence that, over the years, * * * the oldest seven of the nine children were punished by being repeatedly struck with objects on their buttocks, the backs of their legs, and their arms. The children suffered pain, bruising, cuts, and scars as a result. The punishments were frequent and severe. Several of the children testified that each beating involved numerous blows, ranging ...

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