Adams v. Nooth

245 P.3d 173, 239 Or. App. 613, 2010 Ore. App. LEXIS 1651

• Court: Court of Appeals of Oregon
• Decided: December 22, 2010
• Docket: 07126246P; A141620
• Status: Published

Opinions

ORTEGA, J.

Petitioner was convicted of one count of first-degree sexual abuse for molesting his daughter while she slept. He subsequently filed a petition for post-conviction relief, alleging that his trial counsel was constitutionally inadequate in failing to interview, subpoena, and call witnesses who would have bolstered petitioner’s theory that the abuse allegation was manufactured by petitioner’s ex-wife (the victim’s mother). The post-conviction court denied the petition, and petitioner now appeals that judgment. We conclude that the evidence that petitioner claims his trial counsel should have offered (1) would have distracted from petitioner’s theory at trial; (2) was not admissible; or (3) was unknown to petitioner and his counsel until after trial. Accordingly, we affirm.

Petitioner’s underlying criminal trial was, like many sexual abuse cases, a credibility contest. The victim’s sister reported seeing a “ghost” (whom she later identified as petitioner) leaning over the victim during the middle of the night. In a videotaped interview at Liberty House, an abuse assessment center, the victim stated that petitioner had touched her vagina with his finger. That videotaped interview, along with other out-of-court statements, was the key to the state’s case; at trial, the victim testified only that she had dreamed that petitioner had touched her vagina. Petitioner’s theory of the case, meanwhile, was that the victim’s mother, his ex-wife, had planted the idea of sexual abuse in retaliation for his years of spousal abuse, both physical and emotional.

The case was tried to the court, and the issue reduced to whether the court would credit the victim’s out-of-court statements, which constituted the only evidence of sexual abuse. The court ultimately found petitioner guilty and, at sentencing, explained its reasoning this way:

“[Petitioner], I appreciate your sentiments. Frankly, in order to have found you not guilty, I would have had to find that both of your children were lying to put you in prison, and I declined to do that, and I still decline to do that. If, in fact, they have been put up to this by their mother for some reason, then a horrible miscarriage of justice has occurred, but I do not have evidence of that at all.”

In his petition for post-conviction relief, petitioner claimed that his trial counsel had been inadequate in failing to discover and offer precisely the type of evidence that the trial court said was missing: evidence that petitioner’s ex-wife had induced a false allegation of abuse. In support of his petition, he offered, among other things, an affidavit from his sister in which she stated that, had she been called as a witness, she would have testified that petitioner’s ex-wife had confided in her that, if her marriage to petitioner fell apart, she would tell the police that petitioner had molested their children, so that he would be sent to prison and would never see the children again. Petitioner also offered affidavits from other individuals who would have testified that petitioner’s ex-wife had falsely accused a number of people of sexually abusing children, had an obsessive and possessive relationship with her children, and had publicly stated her intention to have petitioner sent to jail to prevent him from gaining custody of the children.

In response to petitioner’s allegations, the state¹ argued that the proffered evidence was inadmissible, that neither petitioner nor petitioner’s trial counsel had known of some of the evidence, and that, in any event, it would not have made any difference in light of petitioner’s other evidence that was admitted at trial on the same theory — i.e., that his ex-wife had planted the idea of petitioner’s sexual abuse in order to have petitioner removed from the home. After a hearing on petitioner’s claims, the post-conviction court ruled that “[p]etitioner failed to prove each and every allegation of [the] petition” and entered judgment to that effect.

Petitioner appeals that judgment, contending that the post-conviction court should have granted his petition for relief based on his counsel’s failure to discover and offer additional evidence about his ex-wife and her influence over the victim. That evidence falls into four categories: (1) evidence about his ex-wife’s emotional and psychological instability stemming from past sexual abuse; (2) evidence that she had an unhealthy attachment to her children; (3) evidence that she made numerous allegations of sexual abuse against other individuals; and (4) evidence that she threatened to accuse petitioner of sexual abuse, among other crimes, in order to keep custody of her children. For the reasons that follow, we conclude that petitioner did not demonstrate that counsel fell below constitutional standards in failing to discover or offer evidence in any of the four categories.

In order to obtain post-conviction relief for inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution, a petitioner must show, “by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that petitioner suffered prejudice as a result.” Trujillo v. Maass, 312 Or 431, 435, 822 P2d 703 (1991). Similarly, to establish a violation of the Sixth and Fourteenth Amendments to the United States Constitution, a petitioner must prove that counsel’s representation fell below an objective standard of reasonableness in a way that prejudiced the defense. Strickland v. Washington, 466 US 668, 687-88, 104 S Ct 2052, 80 L Ed 2d 674 (1984). To the extent that trial counsel has conducted an investigation that is legally and factually appropriate for the case, “[t]he reviewing court will not second-guess a lawyer’s tactical decisions unless those decisions reflect an absence or suspension of professional skill and judgment[.]” Cunningham v. Thompson, 186 Or App 221, 226, 62 P3d 823, adh’d to as modified on recons, 188 Or App 289, 71 P3d 110 (2003), rev den, 337 Or 327 (2004).

Petitioner’s proffered evidence in the first two categories (petitioner’s ex-wife’s mental and emotional instability stemming from past sexual abuse and her “unhealthy” attachment to her children) suffers the same general defect: the evidence distracted from petitioner’s defense theory and, for that reason, trial counsel acted reasonably in not offering it.² Petitioner’s theory at trial, once again, was that his ex-wife had induced their daughters to accuse him of sexual abuse because of his own physical and emotional abuse of his ex-wife. In essence, petitioner offered evidence and argument that his ex-wife and daughters conspired to accuse him of sexual abuse because they feared him and wanted him out of the picture; indeed, he was violating a restraining order at the time of the charged sexual abuse. Petitioner now contends that his trial counsel should have offered testimony from various individuals to the effect that his ex-wife took her children everywhere she went; never left them alone with petitioner or petitioner’s family members; and had been sexually abused herself, which caused mental and emotional instability. That evidence, petitioner argues, provided further proof of his ex-wife’s motives to fabricate allegations of sexual abuse.

Although petitioner’s proffered evidence bears on his ex-wife’s possible motives to fabricate, it would not have appreciably bolstered the defense theory at trial: that she and the children were frightened of petitioner and wanted him out of the picture for good. In hindsight, petitioner and his trial counsel might not have elected the best defense theory available, but it was not an unreasonable decision. Having chosen that theory, it appears that trial counsel made a tactical decision to simplify the case. To focus the trier of fact instead on petitioner’s ex-wife’s history of having been sexually and psychologically abused, her mental problems, and her attachment to her children — some of which a factfinder might well attribute to petitioner’s own conduct — could have reflected poorly on petitioner while obfuscating his primary defense theory that his ex-wife and her children were motivated by fear and had fabricated the allegations to keep him out of their lives. According to petitioner, trial counsel told him that he did not want to make it appear that the defense was “grasping at straws” by highlighting the ex-wife’s sexual abuse, which had occurred 25 years earlier. That was not an unreasonable position, given the defense theory that they had elected to pursue.

Frankly, trial counsel was working with a bad set of facts regarding petitioner’s past abuse, walking a tightrope between that behavior and the charged sexual abuse allegations. On this record, we are not prepared to say that reasonable counsel should have walked that line more deftly by focusing on petitioner’s ex-wife’s vulnerability or her attachment to her children, thereby running the risks associated with offering that additional evidence. Cf. Krummacher v. Gierloff, 290 Or 867, 881, 627 P2d 458 (1981) (“Defense counsel’s tactical choice was based upon reason and professional judgment. It may be that another lawyer would have tried the case differently; it may be that a reviewing court would disagree with that counsel’s decision. It may even be that, in hindsight, the decision was an error. In the context of this trial, however, we cannot agree that defense counsel’s decision not to more fully develop [one theory rather than another] constituted a suspension of professional representation which denied petitioner * * * constitutionally due assistance of counsel.”).

Evidence in the next category — extrinsic evidence that petitioner’s ex-wife had previously accused persons other than petitioner of sexual abuse — suffers an even more fundamental defect: Petitioner has not established that the evidence would have been admissible. As a general matter, extrinsic evidence of prior abuse allegations against others is not admissible to impeach a witness’s credibility or to prove that the witness acted in conformity with those past acts. OEC 404(3) (evidence of other bad acts is not admissible to “prove the character of a person in order to show that the person acted in conformity therewith”); OEC 608(2) (“Specific instances of the conduct of a witness, for the purpose of attacking or supporting the credibility of a witness * * * may not be proved by extrinsic evidence * * * [or,] even if probative of truthfulness or untruthfulness, be inquired into on cross-examination of the witness.”); see State v. Driver, 192 Or App 395, 401-02, 86 P3d 53, rev den, 337 Or 248 (2004), cert den, 543 US 1126 (2005) (extrinsic evidence of a prior false allegation of sexual abuse was inadmissible). Petitioner has not articulated a persuasive theory as to why a different rule, or some exception, would have applied in his case.³

Trial counsel’s failure to offer evidence of the fourth type — testimony regarding past statements by petitioner’s ex-wife to the effect that she would accuse him of crimes, including sexual abuse, to keep custody of her children — is troubling on first blush, but that evidence, too, ultimately fails to support petitioner’s claims for post-conviction relief. As part of his post-conviction case, petitioner offered affidavits from persons who would have testified, with varying degrees of specificity, about threats that his ex-wife had made to report him to the police. Most notably, petitioner offered an affidavit from his sister to the effect that his ex-wife had previously threatened to accuse petitioner of sexual abuse in order to maintain custody of their children. The problem with that evidence, as the state points out, is that petitioner has not demonstrated that he or his trial counsel were aware of the threats; in fact, the evidence suggests that petitioner had never himself heard of those threats until after he was convicted. ⁴ Moreover, nothing in the record demonstrates that petitioner’s counsel was constitutionally inadequate in failing to uncover that evidence, which was unknown even to petitioner, as part of a reasonable investigation. Without a better showing, the post-conviction court was correct to deny his petition.⁵

In sum, we conclude that petitioner failed to demonstrate that his trial counsel’s performance fell below state and federal constitutional thresholds and, for that reason, the post-conviction court did not err in denying his claims for relief. Our conclusion in that regard makes it unnecessary for us to entertain the state’s alternative argument that petitioner failed to establish that he was prejudiced as a result of trial counsel’s performance.⁶

Affirmed.

1 For clarity, we refer to defendant in this post-conviction proceeding (the superintendent of the correctional institution where petitioner is confined) as “the state.”

2 In his affidavit and deposition testimony, petitioner contends that he told trial counsel about his ex-wife’s previous experiences with sexual abuse and his belief that she suffered from a mental disorder as a result.

3 That is not to say that abuse allegations are never admissible under OEC 404(3) for some other purpose, such as to prove motive, intent, or plan. Petitioner, however, has not explained how the previous abuse allegations against persons other than petitioner would have proved a motive, intent, or plan to falsely accuse petitioner of abuse; it is petitioner’s burden in a post-conviction relief proceeding to demonstrate how trial counsel was inadequate, and petitioner simply has not developed a persuasive argument as to how his ex-wife’s allegations against others would be admissible for some purpose other than to show that she had acted in conformity with that past behavior.

4 In his deposition and affidavit, petitioner explains what he told his trial counsel about his ex-wife. Conspicuously absent from that account is evidence that she had threatened to accuse him of any crimes in order to maintain custody of the children.

5 It is possible, too, that the evidence would have done more harm than good. Petitioner’s ex-wife might have explained those previous statements in ways that prejudiced petitioner — for example, by contending that she had some basis for thinking that she could prove her earlier allegations of sexual abuse. The post-conviction record reflects that petitioner’s ex-wife made a police report in 1996 accusing petitioner of sexually abusing their other daughter. For tactical reasons, reasonable counsel might have steered clear of any evidence that would have required petitioner to defend against other allegations of abuse involving his daughters, whether or not those earlier allegations were substantiated.

6 The concurrence agrees with the state’s alternative contention that the post-conviction record is fatally deficient because it contains a transcript of the victim’s interview at Liberty House, whereas a videotape of that interview had been introduced at the underlying trial. We do not address that alternative argument, other than to note that no one below — petitioner, the state, or the post-conviction court— ever suggested that the post-conviction court’s assessment of prejudice was somehow hampered because the record contained a transcript of the victim’s out-of-court statements rather than a videotape showing the victim’s demeanor. It is not all that surprising that the issue — whatever its merits — was ignored below, considering that post-conviction records invariably contain cold transcripts of testimony, and we and post-conviction courts routinely review the issue of prejudice in those cases, assessing the “tendency to affect the verdict” without observing the demeanor of witnesses. See, e.g., Wyatt v. Czerniak, 223 Or App 307, 195 P3d 912 (2008) (concluding that the petitioner had established prejudice as a result of trial counsel’s error in failing to present expert testimony where the case turned on the credibility of the witnesses, including the victim). Here, we know that the trial court found the victim’s videotaped testimony to be credible; for that matter, we know that the case turned on her out-of-court statements. Assuming that to be the case — that is, assuming that the victim’s testimony was extraordinarily compelling — the question of prejudice would turn on whether evidence that should have been proffered by trial counsel would have had a tendency to affect the trial court’s guilty verdict. It is not readily apparent to us why the videotape itself would be necessary to answer that question, were we to reach it.