Alne v. Nooth

288 Or.App. 307

406 P.3d 109

Alan ALNE, Petitioner-Respondent,

v.Mark NOOTH, Superintendent, Snake River Correctional Institution, Defendant-Appellant.

A158811

Court of Appeals of Oregon.

Argued and submitted March 17, 2016.

October 18, 2017

Ryan Kahn, Assistant Attorney General, argued the cause for appellant. With him on the brief were Frederick M. Boss, Deputy Attorney General, and Anna M. Joyce, Solicitor General.

Jed Peterson, Portland argued the cause for respondent. With him on the brief was O'Connor Weber LLP.

Before Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

EGAN, J.

In this post-conviction relief case, the superintendent appeals the post-conviction court's judgment granting petitioner relief and setting aside his convictions for sodomy in the first degree, ORS 163.405 ; unlawful sexual penetration in the first degree, ORS 163.411 ; and sexual abuse in the first degree, ORS 163.427. The superintendent argues that the post-conviction court erroneously concluded that petitioner's trial counsel's failure to object to testimony by a state's witness commenting on the credibility of the complainant rendered his performance constitutionally inadequate. We affirm.

We review the post-conviction court's grant of relief for legal error. Green v. Franke, 357 Or. 301, 312, 350 P.3d 188 (2015). The post-conviction court's express and implicit factual findings are binding if there is evidence to support them. Id."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." Id. We state the facts in accordance with that standard.

The charges against petitioner stemmed from statements that a nearly five-year-old girl, the complainant, made to her father. She alleged that petitioner had touched her vagina with his fingers and mouth when petitioner was babysitting the complainant while her parents were out of the house. The complainant was taken to CARES for an evaluation and was interviewed by Thomas Findlay and a doctor.

A video of that CARES interview was offered as an exhibit at trial. The complainant, who was 12-years old at the time of trial,¹ testified that petitioner touched her genitals with his finger and tongue. Findlay, who had been a child interviewer for CARES for 10 years, also testified for the state. He testified that he had a master's degree in social work, which was required to be an interviewer. He also testified that he was a licensed clinical social worker and had personally conducted over 2,000 child abuse evaluations, of which 1,500 involved videotaped interviews. Portions of his video-recorded interview with the complainant were played during his testimony, and he was asked to comment on those portions. During direct examination, the state asked Findlay whether the words and descriptions of the acts alleged by the complainant were appropriate for a child her age.

"[STATE]: Okay. She made an allegation of essentially oral sodomy or oral sexual activity?

"[FINDLAY]: Mm-hmm.

"[STATE]: And in your training and experience, is that something that non-abused mere five-year-old would sort of have the developmental ability to manufacture or come up with?

"And if you don't understand my question, let me know.

"[FINDLAY]: Well, if you could ask that again, I just want to make sure I answer the question.

"[STATE]: Well, we're talking about an act of oral sexual contact.

"[FINDLAY]: Yes.

"[STATE]: In your training and experience in dealing with children, is that something that a child who has not been abused would ordinarily come up with or burst out with?

"[FINDLAY]: Not generally. I think again I look at the statements that she made about that and the way in which she described it. We do try to discern to the best of our ability is a child describing something that was an experience, or by the way that they're describing the event, does it appear as if that's an experienced event, or is that something that they could have seen or something like that.

"From my training and experience, I thought again that she provided information that was from a child's point of view, and it just seemed like a genuine statement."

Petitioner's counsel did not object to Findlay's testimony.

At trial, evidence was introduced that the complainant's mother had taken complainant to CARES three previous times to be examined for sexual abuse unrelated to petitioner. There was also testimony that the complainant may have, at some time prior to her allegations of abuse by defendant, witnessed her parents engaging in sexual activity and may have seen pornographic videos playing on two occasions. Additionally, the defense brought an expert to testify about the memories of young children and how they may be affected and influenced by what they have seen.

In the state's closing argument, the district attorney told the jury that the complainant was "the heart of the state's case" and repeated that the statements she made in her interview with Findlay were "critical." They were critical, according to the state, "because they provide[d] the information that [the jury] need[ed] to make a decision and to conclude that [petitioner] did in fact sexually abuse [the complainant]." The state further argued that the complainant's statements were made using age-appropriate words that demonstrated that she was reporting events that actually happened to her, mirroring Findlay's testimony.

Petitioner was convicted of first-degree sodomy, unlawful sexual penetration, and first-degree sexual abuse. He appealed, and we affirmed without opinion. State v. Alne, 250 Or. App. 144, 281 P.3d 685, rev. den., 352 Or. 377, 290 P.3d 813 (2012).

Petitioner then petitioned for post-conviction relief on the grounds that he had received inadequate and ineffective assistance of counsel under the state and federal constitutions. He argued that Findlay's expert testimony that the complainant's statement "seemed * * * genuine" was impermissible vouching for the credibility of the complainant. Moreover, argued petitioner, an attorney exercising reasonable professional skill and judgment would have objected to that testimony and moved to strike it or moved for a mistrial because the inadmissibility of such vouching had been clearly established for decades. Petitioner also contended that there was a reasonable probability that counsel's failure to object affected the jury's verdicts. Petitioner argued that, because the jury's determination of guilt was based on a credibility contest between the complainant and petitioner, Findlay's qualifications and experience as an expert witness impermissibly affected the jury's credibility determination when he testified that he believed that the victim was telling the truth. Petitioner's trial counsel did not submit an affidavit explaining his actions to the post-conviction court.

The post-conviction court concluded that petitioner proved by a preponderance of the evidence that his trial counsel was constitutionally inadequate by failing to object to Findlay's testimony and that "the failure to do so was likely or had a tendency to have affected the results of the trial." It determined that Findlay commented on the credibility of the statements that the complainant made during the CARES interview because Findlay's testimony was that he believed that the complainant's statements seemed to have been based on events that had actually happened. The post-conviction court also concluded that "[t]here is no evidence to support the argument that the trial attorney's failure to object was reasonable trial strategy." The court noted that, while petitioner's attorney did call an expert to testify about, and call into question, children's memories in general, petitioner's expert neither testified about, nor challenged, the complainant's credibility. In addition, the post-conviction court concluded that there was nothing in petitioner's defense that was strengthened by allowing the interviewer's testimony to be presented to the jury. Lastly, the post-conviction court concluded that trial counsel's failure to object to the vouching likely affected the outcome of the trial because there was no physical evidence and the credibility of the complainant's testimony was, according to the state during its closing argument, the "heart of the state's case."

On appeal, the superintendent contends that the post-conviction court erred when it concluded that petitioner's counsel was constitutionally inadequate or ineffective by not objecting to Findlay's testimony because not all reasonable attorneys would have viewed Findlay's testimony as an impermissible comment on the complainant's credibility. Additionally, the superintendent argues that petitioner did not prove that he suffered prejudice and that, even if we rejected the foregoing bases for reversal, we should, nonetheless, remand for the post-conviction court to address counsel's potential strategies for not objecting.

Post-conviction relief is warranted when there has been a "substantial denial" of a petitioner's "rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both, and which denial rendered the conviction void." ORS 138.530(1)(a). The state-based constitutional right to adequate assistance of counsel derives from Article I, section 11, of the Oregon Constitution, which provides, in part, that, "[i]n all criminal prosecutions, the accused shall have the right * * * to be heard by himself and counsel." The federal constitutional right to effective assistance of counsel derives from the Sixth Amendment to the United States Constitution's guarantee that, "[i]n all criminal prosecutions, the accused shall enjoy the right * * * to have the Assistance of Counsel for his defence."

To obtain post-conviction relief based on a claim of inadequate assistance...