and submitted October 23, 2018
Malheur County Circuit Court 12039338P; J. Burdette Pratt,
Harrison Latto argued the cause for appellant. On the opening
brief was Jed Peterson. Michael James Evans fled the
supplemental brief pro se.
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.
Lagesen, Presiding Judge, and DeVore, Judge, and James,
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.
Or.App. 332] JAMES, J.
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.
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).
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).
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.
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'
"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 ...