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Evans v. Nooth

Court of Appeals of Oregon

October 30, 2019

MICHAEL JAMES EVANS, Petitioner-Appellant,
v.
Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

          Argued and submitted October 23, 2018

          Malheur County Circuit Court 12039338P; J. Burdette Pratt, Senior Judge.

          Harrison Latto argued the cause for appellant. On the opening brief was Jed Peterson. Michael James Evans fled the supplemental brief pro se.

          Erin K. Galli, Assistant Attorney General, argued the cause for respondent. Also on the brief were Frederick Boss, Deputy Attorney General, and Benjamin Gutman, Solicitor General.

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

         Case Summary: Defendant appeals from a judgment denying his petition for post-conviction relief, arguing he received ineffective assistance of counsel. Specifically, defendant asserts that his appellate counsel, who prevailed on appeal as to certain counts and who challenged the admission of expert testimony diagnosing abuse as to one victim, was ineffective because she failed to argue that the expert's testimony affected the entire trial, including counts against a separate victim. To prevail on appeal under a directed verdict standard, defendant bears the burden of persuasion and production to present evidence establishing, among other standards, either directly or inferentially, what the objectives of the litigation were. Held: Defendant presented no evidence of the objectives of his appellate litigation, which, as a threshold matter, precludes him from establishing that appellate counsel was ineffective.

         [300 Or.App. 332] JAMES, J.

         Petitioner appeals from a judgment denying his petition for post-conviction relief, raising two assignments of error in his opening brief and one assignment of error in a supplemental brief. We reject his second and supplemental assignments without discussion, writing only to address his first assignment of error, wherein he asserts that the trial court erred in relation to his ineffective assistance of appellate counsel claim. Specifically, petitioner asserts that his appellate counsel, who challenged the admission of expert testimony diagnosing abuse as to one victim, A, and prevailed on appeal as to certain counts, was ineffective because she failed to argue that the expert's testimony affected the entire trial, including counts against a separate victim, B. To prevail on appeal under the circumstances, petitioner must establish that the record in this case contains no genuine issue of material fact on any of the elements of petitioner's post-conviction claim and that he was entitled to a judgment in his favor as a matter of law. We conclude that here, the record did not require a directed verdict in favor of petitioner, and accordingly, the post-conviction court did not err. We affirm.

         For purposes of our disposition, a detailed recitation of the facts in the underlying criminal case is unnecessary and would not benefit the bench or bar. It suffices to say that in 2006, a grand jury indicted petitioner for sexual abuse in the first degree (Counts 1-8 and 13-15) and sodomy in the first degree (Counts 9-12). The alleged victims were A, a girl, (Counts 1-12) and B, a boy, (Counts 13-15). At trial, the state offered expert testimony from a doctor, Koeller, diagnosing A with having been sexually abused, based in part on the appearance of her hymen. The jury found petitioner guilty on Counts 1-6, 9, and 10 (involving A), and 13 and 14 (involving B), and it acquitted him of Counts 7, 8, 11, and 12 (involving A) and Count 15 (involving B).

         Petitioner appealed. Appellate counsel raised multiple assignments of error in the opening brief, the first of which was a challenge to the admission of expert testimony diagnosing A with having suffered sexual abuse, without an OEC 104 hearing. Petitioner raised two supplemental [300 Or.App. 333] assignments of error pro se, unrelated to the assignments raised by counsel. We agreed that the first assignment of error established that the trial court erred in failing to provide an OEC 104 hearing and reversed on that assignment of error, noting that "[t]he issues on appeal concern only the convictions pertaining to defendant's abuse of A (Counts 1-6 and 9-10)." State v. Evans, 236 Or.App. 467, 469, 236 P.3d 848 (2010).

         The state petitioned for reconsideration asking us to clarify that "our disposition, which specified the counts that were reversed and remanded, does not affect other counts unaffected by the error, which should be affirmed." State v. Evans, 238 Or.App. 466, 467, 242 P.3d 718 (2010), rev den, 350 Or. 230 (2011). That request was unopposed by petitioner's appellate counsel. We agreed, modifying our previous dispositional tagline to indicate that nonaffected counts- specifically the counts related to B, which were not the subject of Koeller's testimony-were otherwise affirmed.

         Petitioner subsequently filed a petition for postconviction relief raising numerous claims. Petitioner's fifth asserted claim specifically addressed inadequate and ineffective assistance of appellate counsel, asserting:

"On October 1, 2009, before oral argument on petitioner's direct appeal, the Oregon Supreme Court decided State v. Southard, 347 Or. 127, 218 P.3d 104 (2009). Based upon this decision, petitioner's appellate counsel knew or should have known that, given the evidence received by the jury *** the trial court's failure to grant petitioner an OEC 104 hearing required a reversal of petitioner's convictions for offenses against 'A' and 'B'.
"On or after October 1, 2009, appellate counsel failed to request that the Court of Appeals reverse and remand Counts 13 and 14 based on State v. Southard, 347 Or. 127, 218 P.3d 104 (2009), and on grounds that *** Dr. Koeller's expert opinion testimony diagnosing A' with sexual abuse, improperly vouched for the credibility of both A' and 'B' and created a substantial risk that the jury was prejudiced by that testimony when evaluating the credibility of both A and 'B.' Instead, appellate counsel improperly ...

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