Heroff v. Coursey

380 P.3d 1032, 280 Or. App. 177, 2016 Ore. App. LEXIS 985
CourtCourt of Appeals of Oregon
DecidedAugust 10, 2016
DocketCV101322; A150617
StatusPublished
Cited by18 cases

This text of 380 P.3d 1032 (Heroff v. Coursey) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Heroff v. Coursey, 380 P.3d 1032, 280 Or. App. 177, 2016 Ore. App. LEXIS 985 (Or. Ct. App. 2016).

Opinion

SERCOMBE, P. J.

Defendant appeals from a judgment granting petitioner post-conviction relief based on the post-conviction court’s determination that petitioner’s criminal trial counsel provided inadequate assistance of counsel in failing to move to strike and request a curative jury instruction regarding testimony by a county sheriff that vouched for the credibility of the victim in the criminal case. Petitioner cross-appeals the denial of post-conviction relief based on counsel’s failure to object to parts of the state’s closing argument to the jury in the criminal trial. We conclude that the court erred in determining that petitioner was prejudiced by counsel’s response to the vouching testimony and that the court did not err in denying post-conviction relief with respect to counsel’s failure to object to the closing arguments. Accordingly, on appeal, we reverse the judgment of the post-conviction court, and, on cross-appeal, we affirm.

We review judgments granting or denying post-conviction relief for errors of law. Baranovich v. Brockamp, 279 Or App 52, 53, 379 P3d 702 (2016). “In doing so, however, we are bound by the post-conviction court’s findings of fact if they are supported by evidence in the record.” Richardson v. Belleque, 277 Or App 615, 617, 373 P3d 1113 (2016). “If the post-conviction court failed to make findings of fact on all the issues — and there is evidence from which such facts could be decided more than one way — we will presume that the facts were decided consistently with the post-conviction court’s conclusions of law.” Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015).

The amended petition for post-conviction relief asserts inadequate assistance of counsel in defending petitioner in the underlying criminal case against charges of six counts of sodomy, three counts of sexual abuse, and one count of unlawful sexual penetration, public indecency, private indecency, and endangering the welfare of a minor. Those charges arose in the following context: During most of 2005, petitioner resided in Granite, a small town in eastern Oregon. He was employed for part of that time at The Outback, a restaurant and store in Granite. S, a nine-year-old girl, also resided in Granite at that time with her mother. [180]*180S frequented The Outback and developed a friendship with petitioner.

In late 2006, S disclosed to others that petitioner had her perform fellatio on him on a number of occasions in 2005. S also asserted that petitioner had penetrated her vagina with his finger, caused her to touch his penis, touched her breast with his hand and mouth, and showed her pornographic videos. According to S, most of the abuse occurred in the public areas of The Outback when those areas were open or visible to the public, but one incident of sodomy took place in a nearby trailer and another occurred on a log in the nearby woods. The 2007 indictment for those crimes described the sodomy as having taken place “near the television area,” “near the bar area,” “near the restaurant tables,” and “in the store area” inside the “Outback Restaurant,” as well as “in the woods on a log” and in a “beat-up trailer near the Outback Restaurant.” S also stated that, after she performed fellatio on defendant while he was sitting on an upholstered chair in The Outback, defendant wiped seminal fluid on the chair.

Prior to the September 2007 trial, the “store area” and “beat-up trailer” sodomy charges and the private indecency charge were dismissed by the state. During the four-day trial, a number of witnesses testified for the prosecution, including S, persons to whom she disclosed the sexual abuse, a co-owner of The Outback, the county sheriff who conducted the police investigation of the crimes, a scientific expert witness on DNA samples from the upholstered chair, and character witnesses for S.

Petitioner’s witnesses at the underlying criminal trial included both co-owners and fellow employees of The Outback who testified about its layout and operations, a psychologist who opined on the memories of child victims of sexual abuse, relatives and acquaintances of petitioner, and persons who observed S’s character and demeanor during the time in question.1 The defense advanced that S’s accounts of the crimes varied significantly (particularly with respect to the “in the woods on a log” incident) and, at [181]*181times, were not as descriptive as normal child victims, that her claims of sexual activity in the publicly visible areas of The Outback or during times when it was open to the public were implausible, that petitioner was of good character and S was not trustworthy, and that petitioner could not have shown pornography to S on a computer, as claimed, because he was computer illiterate.

As noted, at the criminal trial, the county sheriff, Palmer, was a witness for the state. Palmer testified about his interview with petitioner regarding S’s allegations, the warranted search of petitioner’s premises and computer, the layout of Granite and The Outback store and restaurant, S’s interview by a child welfare agency, and the seizure and testing of the upholstered chair. On direct examination, Palmer testified that he asked S to “show [him] the log” that the “act had happened on,” and she took him took him to an area in Granite near two dwellings, and “pointed out a stump.” The prosecutor then asked, “And based on her actions and her words, was it your understanding that she believed that was a log?” Palmer answered in the affirmative.

On cross-examination, petitioner’s trial counsel asked Palmer about the location of the stump, whether it was “in the woods” as S had claimed and the indictment described. Counsel then asked, “And even if this were the right spot, there was not [a] log there, right?” The state objected to that question as argumentative, which was overruled, the court explaining, “Well, we may get into what her vocabulary means and her perceptions but, nevertheless, he can ask the questions.” Palmer responded, “It was a stump. * * * Is what she pointed and told me.”

On redirect examination, the state asked Palmer again about S’s understanding of the stump or log:

“Q. Let me follow up with the question about the issue of going out to the area of the woods with the stump or log, as it’s been described variously.
“So was there any question in your mind in observing [S’s] actions and words that she was leading you to where this action occurred?
“A. No. No. There was no doubt in my mind as to her credibility or her honesty or—
[182]*182“[PETITIONER’S TRIAL COUNSEL]: Objection, Your Honor.
“THE COURT: Sustained.
“Q. Yeah. I just want to ask you about this specific issue of the log. Did you — you—can you recall what your question or your request of [S] was when you wanted to go out to this area? Do you recall basically what you asked her?
“A. I asked her if she could show me where the log was.
“Q. And after you asked that, she showed you what?
“A. She pointed to one of the stumps there in the photograph.”

In closing argument, the state summarized the evidence and explained to the jury why that evidence proved beyond a reasonable doubt that petitioner was guilty of the charges.

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Cite This Page — Counsel Stack

Bluebook (online)
380 P.3d 1032, 280 Or. App. 177, 2016 Ore. App. LEXIS 985, Counsel Stack Legal Research, https://law.counselstack.com/opinion/heroff-v-coursey-orctapp-2016.