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Frazier v. State

Court of Appeals of Oregon

May 22, 2019

MATT RYAN FRAZIER, Petitioner-Appellant,
v.
STATE OF OREGON, Defendant-Respondent.

          Argued and submitted August 17, 2017

          Malheur County Circuit Court 15CV1447; J. Burdette Pratt, Senior Judge.

          Jason E. Thompson argued the cause for appellant. Also on the briefs was Ferder Casebeer French & Thompson, LLP.

          Rebecca M. Auten, 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 a judgment denying post-conviction relief from convictions of two counts of fourth-degree assault, and one count each of second-degree assault and strangulation. The post-conviction court concluded that petitioner's trial counsel performed inadequately under Article I, section 11, of the Oregon Constitution by failing to object, move to strike, or request a limiting instruction after the victim in the case testified about "prior abuse" committed by petitioner. The post-conviction court concluded, however, that counsel's failure did not prejudice petitioner. On appeal, petitioner raises a single assignment of error, arguing that the court erred in so concluding, and the state cross-assigns error to the court's conclusion that petitioner's trial court counsel performed deficiently. Held: The post-conviction court correctly concluded that petitioner's trial counsel performed inadequately, but the court erred in concluding that trial counsel's inadequate performance did not prejudice petitioner. Petitioner satisfied his burden to establish the facts alleged in his petition on the ground for relief regarding his trial counsel's inadequate performance, and the post-conviction court was required to grant relief.

         Reversed.

         [297 Or.App. 585] EGAN, C. J.

         Petitioner appeals a judgment denying post-conviction relief from convictions of two counts of fourth-degree assault, and one count each of second-degree assault and strangulation. The post-conviction court concluded that petitioner's trial counsel performed inadequately by failing to object, move to strike, or request a limiting instruction after the victim in the case testified about "prior abuse" committed by petitioner. However, the post-conviction court concluded that counsel's failure did not prejudice petitioner. On appeal, petitioner raises a single assignment of error, arguing that the court erred in so concluding. The state cross-assigns error to the court's conclusion that petitioner's trial court counsel performed deficiently. We agree with petitioner and reverse.

         To obtain post-conviction relief based on a claim of inadequate assistance of counsel, petitioner first must demonstrate "by a preponderance of the evidence that [his or her counsel] failed to exercise reasonable professional skill and judgment." Green v. Franke, 357 Or. 301, 312, 350 P.3d 188 (2015) (brackets in original). If petitioner meets that burden, he must also prove that he was prejudiced, or in other words, that his "counsel's failure had a tendency to affect the result of his trial." Id. The "tendency to affect the outcome standard demands more than mere possibility, but less than probability." Id. at 322. Our review of a post-conviction court's determinations on these issues is for errors of law, and we are bound by the court's findings of historical fact if there is evidence in the record to support them. Id. at 312.

         The material facts pertaining to petitioner's inadequate assistance claim are not in dispute. In the underlying criminal proceeding, petitioner was charged with one count each of second-degree assault and strangulation, and two counts of fourth-degree assault. All of the charges arose out of physical altercations between petitioner and J, petitioner's wife at the time, that had occurred on two separate days. At trial, petitioner and J testified. Each told a different story about the altercations. J testified that, on the first day, petitioner grabbed her by the throat and took her to a wall, [297 Or.App. 586] choking her for "seconds," long enough for J to "feel like [she] was going to pass out." Regarding the second day, J testified that, after an argument, petitioner followed her into their bedroom, grabbed a lamp off the bedside table, and hit her over the head with it. Petitioner, on the other hand, testified that he never assaulted or choked J. Petitioner testified that he and J had a verbal altercation, during which J broke a lamp on the floor. Petitioner testified that he told J that it was not acceptable to destroy household items, that he was leaving, and that J began "running around screaming" that she was going to get petitioner arrested. Further, petitioner testified that J hit herself with the lamp.

         In her testimony, J made several statements in response to questions about the history of her relationship with petitioner. After the prosecutor asked J how it "came about" that she and petitioner moved to Oregon, J testified that they had first moved to California "after [petitioner] had hit [her] in the head in Alabama with [a], a wooden box, and [she] became not able to control him [herself]." On cross-examination, after the defense attorney asked J whether there was still a mark visible on her neck from the alleged strangulation, J testified that she also had a scar "from the first time when he hit [her] with the metal box in Alabama." Also on cross-examination, after the defense attorney asked whether J was ready to move back to Alabama when the altercations occurred, J testified that she was not, and explained, "I'm here now because I like it here. It's better than Alabama. I mean, there's women's rights. There's people who want to help you. Before when I got beat, nobody cared, and I thought that it was okay. But when I got here, they gave me resources that showed me, when I opened the book and I read and learned what an abusive husband was about, I realized that I was in an abusive relationship."

         Neither the prosecutor nor the defense objected or made any motions or requests for jury instructions regarding J's testimony. Ultimately, the jury found petitioner guilty of all four charges. On the charge of assault in the second degree, the jury voted 10 to 2 to convict petitioner. On the remaining charges, the jury voted 11 to 1. Petitioner appealed the [297 Or.App. 587] judgment of conviction, and we affirmed without opinion in State v. Frazier, 270 Or.App. 600, 351 P.3d 89 (2015).

         Petitioner sought post-conviction relief, making several arguments that his counsel was constitutionally inadequate under Article I, section 11, of the Oregon ...


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