Genaro-Lopez v. Cain

1

327 Or.App. 106

JORGE CHRISTIAN GENARO-LOPEZ, Petitioner-Appellant, v. Brad CAIN, Superintendent, Snake River Correctional Institution, Defendant-Respondent.

A176101

Court of Appeals of Oregon

July 12, 2023

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Argued and submitted May 22, 2023

Malheur County Circuit Court 20CV04107; J. Burdette Pratt Senior Judge. Affirmed.

Jason E. Thompson argued the cause for appellant. Also on the brief was Thompson Law, LLC.

Erin K. Galli, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum Attorney General, and Benjamin Gutman, Solicitor General.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and Jacquot Judge.

JOYCE, J.

Petitioner appeals from the denial of his petition for post-conviction relief. Petitioner was convicted of raping an acquaintance after a party at which the victim consumed alcohol and smoked marijuana. After the victim went to sleep, she woke up to find petitioner having sex with her. The state charged petitioner with having committed first-degree rape by having sexual intercourse with someone who was incapable of consent by way of physical helplessness. ORS 163.375(1)(d); see also ORS 163.305(4); State v. Marker, 263 Or.App. 669, 673-74, 329 P.3d 781 (2014) (defining physical helplessness and explaining that someone who is asleep is physically helpless within the meaning of the statute). Petitioner admitted to having sex with the victim but testified that the victim was "awake the whole time" and consented to having sex with him. On appeal he challenges, in a single assignment of error, eight rulings on eight separate claims in his post-conviction petition.^[1] We affirm.

Failure to consult an expert/offer expert testimony: In two claims, petitioner asserted that trial counsel was inadequate for not consulting an expert and presenting evidence that the victim's blood alcohol content did not rise to such a level that the victim would have been passed out at the time of the incident. Trial counsel explained that he had neither consulted an expert nor offered expert testimony on the matter because (1) he knew the kind of testimony such an expert would have presented and (2) he believed that the evidence would have been unhelpful given the defense at trial-that the victim was awake and consented. In trial counsel's view, evidence that the victim was not so intoxicated so as to have passed out would have hurt the defense. Counsel explained that evidence that the victim was intoxicated, in his view, made it more likely that the jury would believe petitioner's story that the victim was flirting, uninhibited, and willing to have sex with a casual acquaintance and would have decreased the victim's credibility in the eyes of the jury. The post-conviction court credited that testimony and concluded that counsel had acted reasonably, and that petitioner had not been prejudiced.

We agree that the theory of petitioner's defense rendered counsel's tactical decisions reasonable and, for the same reasons, were not prejudicial to petitioner. Richardson v. Belleque, 362 Or. 236, 256, 406 P.3d 1074 (2017) ("[W]hen counsel has reason to believe that pursuing certain investigations would be fruitless or even harmful, counsel's failure to pursue those investigations may not later be challenged as unreasonable." (Internal quotation marks omitted.)); Thompson v. Belleque, 268 Or.App. 1, 17, 341 P.3d 911 (2014), rev den, 357 Or. 300 (2015) ("Among the universe of reasonable tactical decisions is the decision not to present expert evidence.").

Failure to request a jury instruction on an affirmative defense: Petitioner asserted that counsel was inadequate for failing to request a jury instruction that petitioner did not "know of the facts or conditions responsible for the victim's incapacity to consent[.]" ORS 163.325(3); UCrJI 1633. The burden of proving that affirmative defense, had trial counsel raised it, would have rested with petitioner. Trial counsel explained that, among other factors, he did not request that instruction because he did not believe that the evidence supported it, and that in fact the instruction ran contrary to petitioner's defense. The post-conviction court, relying on counsel's explanation, concluded that trial counsel had acted reasonably, and that petitioner was not prejudiced. Again, we agree. No evidence was presented that petitioner did not know that the victim was physically helpless (asleep); instead, his sole defense was that the victim was awake throughout and consented to the sexual intercourse. In that respect, the evidence did not support the instruction and offering it would have contradicted petitioner's defense. See Krummacher v. Gierloff, 290 Or. 867, 878-79, 627 P.2d 458 (1981) ("Defense counsel regarded it as strategically unsound to dilute the effect of his credible attack on the state's evidence by asserting a theory of defense which was not credible.").

Failure to request instruction requiring petitioner's knowledge that victim was physically helpless: Petitioner asserted that trial counsel was inadequate for not requesting a jury instruction that would have told the jury that the state had to prove that petitioner "knew" that the victim was physically helpless (asleep). The post-conviction court concluded that petitioner failed to prove that he was prejudiced because, among other reasons and as discussed above, petitioner's defense was that the victim was awake and actively participating in sex. Given that the jury found petitioner guilty, it could not have simultaneously found that the victim was asleep and that petitioner did not know of that fact.

Failure to move for an arrest of judgment: Petitioner asserted that trial counsel acted deficiently by failing to move in arrest of judgment based on the indictment. The indictment alleged that petitioner had sexual intercourse with the victim when she "was incapable of consent by reason of physical incapacitation or physical helplessness." "[P]hysical incapacitation" is not one of the conditions defining first-degree rape. Rather, a victim may be incapable of consent "by reason of mental defect mental incapacitation or physical helplessness." ORS 163.375(1)(d) (2013) (emphasis added). The post-conviction court rejected that claim, finding that the jury was never instructed that it could find petitioner guilty if the victim was "physically incapacitated" and instead was instructed only that it...