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Edwards v. Taylor

Court of Appeals of Oregon

December 19, 2018

BENJAMIN LEE EDWARDS, Petitioner-Respondent Cross-Appellant,
v.
Jeri TAYLOR, Superintendent, Eastern Oregon Correctional Institution, Defendant-Appellant Cross-Respondent. 295 Or.App. 476

          Argued and Submitted August 2, 2017

          Umatilla County Circuit Court CV150109 Rick J. McCormick, Senior Judge.

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

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

          Before Lagesen, Presiding Judge, and Egan, Chief Judge, and DeVore, Judge. [*]

          [295 Or.App. 477] Case Summary: Defendant, the superintendent of the Eastern Oregon Correctional Institution, appeals a judgment granting post-conviction relief and setting aside petitioner's convictions and sentence for 11 crimes. The post-conviction court granted relief on the ground that the failure of petitioner's trial counsel to object to the delivery of the "natural-and-probable-consequences" jury instruction-which the Supreme Court later discredited-constituted inadequate and ineffective assistance of counsel, in violation of petitioner's rights under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. The post-conviction court did so after determining that issue preclusion barred the superintendent from contesting that petitioner's trial counsel's failure to object to the instruction was deficient and, further, that petitioner was prejudiced by that failure to object. Defendant assigns error to those conclusions. Petitioner cross-appeals. Held: The post-conviction court erred in its application of the doctrine of issue preclusion and also in concluding that petitioner suffered prejudice with respect to four of his convictions, but did not otherwise err in its prejudice determination with respect to the remaining convictions. The Court of Appeals rejected petitioner's cross-appeal without written discussion.

         Reversed and remanded on appeal; affirmed on cross-appeal.

          [295 Or.App. 478] LAGESEN, P. J.

         Defendant, the superintendent of the Eastern Oregon Correctional Institution, appeals a judgment granting post-conviction relief and setting aside petitioner's convictions and sentences for 11 crimes: four counts of first-degree robbery with a firearm; four counts of second-degree robbery with a firearm; first-degree unlawful sexual penetration; first-degree unlawful sexual penetration with a firearm; and first-degree assault with a firearm.[1] Petitioner cross-appeals. The post-conviction court granted relief on the ground that the failure of petitioner's trial counsel to object to the delivery of the so-called "natural-and-probable-consequences" jury instruction-which the Supreme Court later discredited in State v. Lopez-Minjarez, 350 Or. 576, 260 P.3d 439 (2011)-constituted inadequate and ineffective assistance of counsel, in violation of petitioner's rights under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution. The post-conviction court did so after concluding that the doctrine of issue preclusion barred the superintendent from contesting that petitioner's trial counsel's failure to object to the instruction was deficient and, further, that petitioner was prejudiced by that failure to object. The court rejected petitioner's other asserted grounds for relief. We conclude that the post-conviction court erred in its application of the doctrine of issue preclusion and also in concluding that petitioner suffered prejudice with respect to his four convictions for second-degree robbery, but that the court did not otherwise err in its prejudice determination. On the appeal, we therefore reverse and remand for further proceedings consistent with this opinion, but we affirm on the cross-appeal.

         I. BACKGROUND

         A. Underlying Criminal Proceedings

         The facts pertinent to the issues before us are not disputed. Petitioner's convictions stem from a jury's finding [295 Or.App. 479] that petitioner was involved in a brutal home invasion robbery in Banks. Three friends of H, the homeowner-R, G, and C-were in the living room getting ready to view a movie when three masked men burst into the house. The first man to enter the house had his gun drawn and started barking orders; the others may also have been armed. The first man to enter the house appeared to those present to be the group leader.

         The intruders ordered R, G, and C to get face down on the floor and to shut their eyes. C was hogtied using zip ties and an extension cord and R's wrists were tied with zip ties. H, a medical marijuana cardholder, was in the bathroom at the time. He had just harvested some of his marijuana and was cleaning his equipment. When he came out of the bathroom, he was hogtied with speaker wire.

         The intruders repeatedly asked H and his visitors where the money was and rummaged through the house. When they did not find what they were looking for, one grabbed R by the throat, shook him, and threatened to cut his face with a piece of glass if he did not disclose where the money was; R passed out from the shaking. One of the intruders kicked H in the head, fracturing his eye socket, cheek, and upper jaw.

         Unable to get H to admit that there was any more money in the house, the man who appeared to be the group's leader ordered G to strip and get down on her hands and knees, and then violently sexually assaulted her three times in an effort to convince H to admit that there was more money in the house. He first jammed his fist into her vagina, then his gun, and then another object that G could not identify. With each penetration, the intruder asked if his assault on G made a difference in H's denial that there was more money.

         Having failed to locate more money, the three men discussed leaving. H, C, and G were all put in the bathtub, stacked on top of one another. One of the intruders held a gun to G's head and cocked the gun, stating that he would kill them. The victims were then told that they would be killed if they called the police. Someone tied the bathroom [295 Or.App. 480] door shut, and the three men left, taking what money they had found, marijuana, and a few other items.

         R regained consciousness after the intruders left. Although his hands and feet were tied, he was able to make his way out of the house and to the neighbors' house while yelling for help. The neighbors called police and tried to remove the zip ties from R's hands. They were able to get one off, but the other one was secured so tightly that they were unable to remove it. Paramedics later were able to cut off the zip tie. R's hand had to be put in a cast to treat the injuries inflicted by the tight zip tie. In the meantime, G, C, and H had managed to free themselves and get out of the bathroom.

         Detective Marcom was one of the officers who responded to the incident. H told him that he thought there was a possibility that Felix, who had lived in the house with him previously, was involved. Marcom later arrested Felix, and she disclosed that she had set up the robbery through her friend Lummus and had driven Lummus and another person she did not know to H's house to check it out before the robbery. After Lummus was arrested, he implicated petitioner and another man, Moffett. According to Lummus, petitioner was the person who had led the three into the house, who had carried the gun and provided the zip ties, and who had choked R, kicked H, and sexually assaulted G.

         Petitioner was arrested and charged with 15 offenses: four counts of first-degree robbery (one for each victim) by committing theft by using and threatening the use of physical force "while armed with a deadly weapon" (Counts 1 to 4); two counts of first-degree robbery (one each for victims H and R) for committing theft by using physical force "while causing serious physical injury" to H and R (Counts 5 to 6); four counts of second-degree robbery (one for each victim) for committing theft by using and threatening to use physical force "while aided by another person actually present" (Counts 7 to 10); three counts of unlawful sexual penetration committed against G (Counts 11 to 13);[2] and two counts of first-degree assault (one count each for victims [295 Or.App. 481] H and R) for "[cause] serious physical injury" by means of the zip ties (Counts 14 to 15).

         At trial, Lummus testified for the state and, consistent with Lummus's version of events, the state's theory was that petitioner had been the first to enter the house and was the one who had choked R, kicked H, and sexually assaulted G. The state's alternative theory was that, even if petitioner was not the ringleader, he was one of the other intruders and was necessarily liable as a principal or accomplice on all of the charges by virtue of that fact. Petitioner's defense was that he was not one of the intruders and that Lummus was lying to secure a good plea deal. On the state's request, the trial court provided the "natural-and-probable-consequence" instruction to the jury as part of the instructions addressing accomplice liability. As a whole, the instructions regarding accomplice liability provided:

"So, what is aiding and abetting? A person aids or abets another in the commission of a crime if, with the intent to promote or make easier the commission of the crime, that person either encourages, or procures, or advises, or assists, either by acting or by advice, the planning or commission of the crime.
“*****
"A person who aids or abets another person in committing a crime, in addition for being criminally responsible for the crime that is committed, is also criminally responsible for any act or other crimes that were committed as a natural and probable consequence of the ...

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