Logan v. State

313 P.3d 1128, 259 Or. App. 319, 2013 WL 6022094, 2013 Ore. App. LEXIS 1360
CourtCourt of Appeals of Oregon
DecidedNovember 14, 2013
Docket070809874; A144503
StatusPublished
Cited by13 cases

This text of 313 P.3d 1128 (Logan v. State) 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
Logan v. State, 313 P.3d 1128, 259 Or. App. 319, 2013 WL 6022094, 2013 Ore. App. LEXIS 1360 (Or. Ct. App. 2013).

Opinion

ARMSTRONG, P. J.

The state appeals a judgment granting petitioner post-conviction relief and setting aside his convictions for four counts of first-degree sexual abuse, ORS 163.427, and two counts of endangering the welfare of a minor, ORS 163.575. The state argues that the post-conviction court erroneously concluded that trial counsel’s failure to object to testimony regarding “treatment recommendations” rendered his performance constitutionally inadequate. Further, the state argues that, in any event, petitioner failed to establish that counsel’s failure to object to the testimony prejudiced petitioner. We agree with the state that the post-conviction court erred and, accordingly, reverse and remand.1

We state the facts consistently with the findings of the post-conviction court, which are binding on us if there is evidence to support them. Derschon v. Belleque, 252 Or App 465, 466, 287 P3d 1189 (2012), rev den, 353 Or 208 (2013). At the time that the abuse underlying petitioner’s convictions came to light, petitioner shared physical custody of his two children, seven-year-old C and her older sibling, N, with their mother, petitioner’s ex-wife. The dissolution of petitioner and his ex-wife’s marriage had been contentious, and petitioner’s relationship with his ex-wife, who had primary custody of both children, was strained. While driving the children to his ex-wife’s house at the conclusion of a visit, petitioner became upset when one of the children expressed a desire not to live with petitioner. During the outburst that followed, petitioner threatened to kill his ex-wife and punched the rearview mirror of his car, breaking it and cutting his hand. Petitioner’s conduct upset the children, and, when they arrived at their mother’s house, the children told her and their stepfather what petitioner had said and done.

Thereafter, petitioner’s ex-wife contacted Haines, an officer in the Portland Police Bureau’s Domestic Violence Reduction Unit. Haines conducted a series of individual interviews with petitioner’s ex-wife and the children, and, although initially focused on petitioner’s threatening behavior, the interviews revealed that petitioner had engaged in [322]*322unconventional conduct around the children. Specifically, petitioner’s ex-wife said that petitioner chose to be nude in his home in front of the children and that he sometimes “cuddled” with C while nude. C confirmed petitioner’s behavior and also indicated that petitioner had touched her vaginal area. That prompted Haines to stop the interview, consult with a detective from the bureau’s Child Abuse Team, and schedule a sexual-abuse evaluation for C with CARES Northwest, a child-abuse-assessment center.

At CARES, C underwent a medical examination, performed by a staff physician, Dr. Bays, and an interview with Findley, a staff social worker and interviewer. During the interview with Findley, C again disclosed that petitioner had cuddled with her while he was nude and that, while cuddling, petitioner had touched her chest and vaginal area. She also said that she had felt petitioner’s erect penis on her leg. After the evaluation, Bays and Findley prepared a report containing multiple treatment recommendations.

During an interview with a detective regarding his conduct with C, petitioner fully admitted that he was often nude in his home in front of the children. He also acknowledged that he sometimes “cuddled” with and “caressed” C while he was nude. Notwithstanding those admissions, petitioner adamantly denied touching C in any sexual way, although he conceded that he may have inadvertently touched C’s vaginal area.

A grand jury subsequently indicted petitioner on eight counts of first-degree sexual abuse and two counts of endangering the welfare of a minor. Petitioner pleaded not guilty and proceeded to a jury trial. At trial, as pertinent to this appeal, the state called Findley, who offered the following testimony about the CARES treatment recommendations:

“We recommended [C] not to have any direct contact with [petitioner] at that time.
* * * *
“We also recommended that [petitioner] have a full psychological evaluation with attention paid to anger management and a sex offender evaluation.
* ‡ ‡ *
[323]*323“We recommended further investigation by *** law enforcement into the allegations of abuse. We also recommended [for the] need to evaluate [the] safety of [N] who has had ongoing contact with [petitioner].”

Petitioner’s trial counsel did not object to that portion of Findley’s testimony.

The jury found petitioner guilty of four counts of first-degree sexual abuse and both counts of endangering the welfare of a minor. Petitioner appealed, and we affirmed his convictions. State v. Logan, 203 Or App 639,129 P3d 281, rev den, 340 Or 359 (2006). He then sought post-conviction relief, alleging 58 claims of inadequate assistance of trial counsel.

At issue on appeal is petitioner’s claim that trial counsel performed inadequately by failing to object to Findley’s testimony about the CARES treatment recommendations. Specifically, identifying the excerpts of Findley’s testimony set out above, petitioner alleged that those recommendations “left [the jury] with the impression that [C’s] allegations must be true,” because “a professional was making recommendations which supported that finding.” Apparently due to the number of claims raised by petitioner, Findley’s testimony about the CARES treatment recommendations received little attention from petitioner or the state at the post-conviction hearing, and neither party addressed it in the party’s trial memorandum.

The state did present an affidavit in which petitioner’s trial counsel responded to petitioner’s allegations. Although the affidavit did not directly address the CARES treatment recommendations, it explained trial counsel’s general approach to evidentiary objections at trial:

“As a criminal defense lawyer, although there was always a balance to be maintained so that jurors would not perceive that I was disinterested or uninvested in my clients’ innocence, my general approach and belief about objections at jury trials was conservative. I believed, and continue to believe, that jurors often particularly suspect that a criminal defense lawyer making constant objections, whether upheld or not, is trying to keep information from them, and that promoting this sort of feeling can lead them to link their own distaste for such methods to defendant.
[324]*324“Based on this general belief, I did not object whenever possible, but only when I was confident that there was an evidentiary violation and that it would be harmful and important in the context of my overall trial strategy.”

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Cite This Page — Counsel Stack

Bluebook (online)
313 P.3d 1128, 259 Or. App. 319, 2013 WL 6022094, 2013 Ore. App. LEXIS 1360, Counsel Stack Legal Research, https://law.counselstack.com/opinion/logan-v-state-orctapp-2013.