Delgado-Juarez v. Cain

307 Or.App. 83

475 P.3d 883

Ramon DELGADO-JUAREZ, Petitioner-Appellant,

v.Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

A163140

Court of Appeals of Oregon.

Submitted July 3, 2018.

October 7, 2020

Jed Peterson and O'Connor Weber LLC filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.

Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.

DeHOOG, P. J.

A jury convicted petitioner of eight counts of first-degree sexual abuse and three counts of first-degree sodomy involving two alleged victims—his niece and his daughter. Petitioner now appeals a judgment denying him post-conviction relief regarding those convictions and raises five assignments of error; we write to address one.¹ In his second assignment of error, petitioner contends that the post-conviction court erred in denying him relief on his claim that his trial attorney had provided inadequate and ineffective assistance of counsel when she elected not to seek a limiting instruction, which would have told the jury that they could not rely on facts related to the sexual assault of one alleged victim as evidence that petitioner had more likely sexually assaulted the other alleged victim. For the reasons that follow, we conclude that trial counsel's decision against requesting a limiting instruction was not the product of reasonable professional skill and judgment; we further conclude that counsel's omission was prejudicial to petitioner. Accordingly, the post-conviction court erred in denying that claim, and we, therefore, reverse and remand the post-conviction court's judgment.

We review the post-conviction court's denial of relief for legal error. Waldorf v. Premo , 301 Or. App. 572, 573, 457 P.3d 298 (2019), rev. den , 366 Or. 451, 464 P.3d 421 (2020) (applying that standard). "We accept the post-conviction court's express and implicit findings of fact if there is evidence in the record to support them." Id. ; see also Ball v. Gladden , 250 Or. 485, 487, 443 P.2d 621 (1968) (where court has not expressly ruled on all facts relevant to decision and evidence could support varying findings, court is presumed to have decided facts in accordance with its conclusions). We state the facts accordingly.

The underlying allegations involved two alleged victims, petitioner's niece, AB, and his adoptive daughter, AR, both of whom testified at petitioner's criminal trial. In the summer of 2001, petitioner lived with his then-wife and her two children, including AR. At the time, AB lived with her own family less than two blocks away. According to AB, one day, when she was seven years old, she was home alone watching television when petitioner knocked on the door. AB opened the door for petitioner and resumed watching TV. Petitioner then approached AB on the sofa, sat down next to her, put his hand on her stomach, and asked if he could lick her "private spot"; AB responded "no." Petitioner persisted, first pulling down AB's pants and underwear and getting on top of her, and then pulling down his own pants. AB testified that then she recalled feeling "something," which she thought was probably petitioner's penis, "go in" to her vagina, causing her sharp pain. AB then "blacked out." She recalled, however, that when petitioner stopped, he first told AB not to tell anyone that he had come over to her house, and then left.

AB ultimately disclosed her alleged abuse to a family member when she was 17 years old. The family member sought help on her behalf, and the police eventually became involved. During the ensuing investigation into petitioner's alleged abuse of AB, the police learned of allegations that petitioner had also abused his daughter, AR. AR testified at petitioner's trial that he had sexually abused her beginning in 1994, when she was seven years old. At the time, AR said, her family had lived together in a mobile home and had all slept together in the same room, where there had been two beds. According to AR, her mother had worked nights at the time, while petitioner had stayed home to watch the children. AR explained that, in a typical episode of abuse, she would fall asleep with her clothes on, then wake up to discover that her pants and underwear had been removed and that petitioner was touching her vagina. AR testified that, in addition to touching her vagina with his penis and fingers, petitioner would touch her breasts, lick her vagina, and place her hands on his penis. AR also testified that petitioner sexually abused her in other areas of the house, including in the bathroom when she urinated, as well as in the living and laundry rooms. Petitioner stopped his abuse of AR when she was 12, after the family had moved to a different house where AR had her own room with a door that locked.

Petitioner testified on his own behalf at trial, where he denied having sexually abused either AB or AR.

Petitioner further testified that, contrary to the testimony of those witnesses, the family had never shared a room, AR's mother had not worked nights, and he had never been inside AB's home.

During the state's closing argument, the prosecutor first recounted AB's testimony and then separately reviewed the evidence regarding AR, arguing to the jury that the state had met its burden of proof as to each count. The defense, in turn, reiterated its contention that the alleged abuse had never occurred. Trial counsel emphasized that neither AB nor AR had liked petitioner, and she theorized that they both, therefore, had targeted petitioner with false allegations. Counsel also pointed out that, in her view, many aspects of the case were "strange," and that the alleged abuse of AB, in particular, was "qualitatively, for lack of a better word, different." Counsel argued that, given the "odd, strange, and even fantastic" aspects of the case, there was reasonable doubt as to petitioner's guilt.

At the conclusion of petitioner's trial, the jury unanimously voted to convict him of three counts of first-degree sodomy and seven counts of first-degree sexual abuse, all committed against AR and alleged to have occurred between 1994 and 1998. On a separate count of first-degree sexual abuse, alleged to have been committed in 2001 against AB, the jury voted 11 to 1 to convict. Finally, on a single count charging petitioner with first-degree rape against AB in 2001, the jury voted 10 to 2 to acquit. Petitioner appealed his convictions, and, other than reversing the trial court's imposition of attorney fees, we affirmed.

State v. Delgado-Juarez , 263 Or. App. 706, 707, 330 P.3d 1248, rev. den. , 355 Or. 880, 333 P.3d 334 (2014).

Petitioner subsequently petitioned for post-conviction relief, contending that, in various ways, he had been denied his right to adequate counsel under Article I, section 11, of the Oregon Constitution, and effective counsel, as guaranteed by the Sixth and Fourteenth Amendments to the United States Constitution. In the claim pertinent to his second assignment of error, petitioner alleged the following:

"Because petitioner's jury received evidence that he raped, sodomized and sexually abused cousins AR (Counts 3-12) and AB (Counts 1, 2) during multiple separate criminal episodes, which substantially increased the probability of convictions on all offenses, competent counsel exercising reasonable professional skill and judgment would request that the court instruct the jury to consider the evidence concerning each alleged victim separately and only as that evidence related to a specific charge or charges relating to that specific alleged victim.

"* * * * *

"Because the jury did not receive a limiting instruction * * *, there is a reasonable probability that the jury convicted petitioner on Counts 2-13 [sic ] because it believed that he had a propensity for sexually abusing minor females."

In response, the superintendent submitted a declaration in which trial counsel somewhat cryptically stated that she had not requested the specified jury instruction because "such a limiting instruction with respect to evidence that was admitted without limitation would not have been curative." The post-conviction court denied all of petitioner's claims. As to petitioner's claim that trial counsel had performed deficiently in failing to request a limiting instruction, the post-conviction court ruled as follows:

"The legal basis for denial of relief is: Petitioner failed to prove that his attorney was ineffective for failing to request a jury instruction advising the jury that they needed to consider the charges related [to] AB and AR separately. Petitioner's trial attorney explained her reasonable decision not to request such an instruction.

"In addition, there is no proof of prejudice. The jury acquitted Petitioner of Count 1 on a 10-2 vote, convicted him of count 2 by an 11-1 vote and convicted him of all counts related to AR by a unanimous verdict. This would indicate that the jury did in fact consider the counts separately. There is no evidence that requesting and giving the requested instruction would have had a tendency to affect the outcome of trial."

Petitioner now appeals, assigning error to the post-conviction court's denial of relief on his claim of inadequate and ineffective assistance of counsel related to counsel's failure to request a limiting instruction. On appeal, as in the post-conviction court, petitioner contends that an attorney exercising reasonable professional skill and judgment would have asked the trial court to give the jury a limiting instruction informing them that they could not consider facts related to one alleged victim as an indication of guilt as to the other. Petitioner's argument in support of that contention, which he combines with an argument that trial counsel should have demurred to the indictment, is not elaborate. Indeed, the combined argument focuses almost...