Smith v. State

1

331 Or.App. 129

MATTHEW TAYLOR SMITH, Petitioner-Appellant, v. STATE OF OREGON, Defendant-Respondent.

A179989

Court of Appeals of Oregon

February 22, 2024

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).

Submitted January 30, 2024

Deschutes County Circuit Court 20CV27152 Michelle A. McIver Judge.

Jedediah Peterson and O'Connor Weber LLC fled the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Philip Thoennes, Assistant Attorney General, fled the brief for respondent.

Before Lagesen, Chief Judge, Hellman, Judge, and DeVore, Senior Judge.

LAGESEN, C. J.

Petitioner appeals a judgment denying his petition for post-conviction relief from his conviction, by a jury, for one count each of luring a minor, first-degree online sexual corruption of a child, and attempted second-degree sexual abuse. He argues that his trial counsel was constitutionally ineffective for failing to object to a police detective's testimony regarding petitioner's grooming of the victim, because according to petitioner, the detective's testimony was scientific evidence for which the state did not establish an adequate foundation. We review the judgment of the post-conviction court for legal error. Green v. Franke, 357 Or. 301, 312, 250 P.3d 188 (2015). We accept the court's supported implicit and explicit factual findings. Id. We affirm.

When petitioner was 24 years old, he saw a girl at a restaurant and left her a note with his phone number and suggesting, in the words of the note, a "hookup." State v. Smith, 300 Or.App. 101, 102, 452 P.3d 492 (2019), rev den, 366 Or. 257 (2020). The girl's mother reported the incident to police and gave the note to police officers. Id. Officers then sent text messages to petitioner in which they impersonated the girl and told him that she was 15 years old. Id. Petitioner responded with several sexually explicit comments and requests in which he expressed interest in having sex with the supposed sender of the messages. In all, petitioner and the ostensible girl exchanged 308 text messages over two days. In those messages, petitioner told the "girl" early on to keep their communications secret. Petitioner's messages escalated in their explicitness, starting with calling the girl "pretty cute" and later turning into graphic "sexting." In particular, petitioner and the ostensible girl exchanged photos of their genitals (the officers used pictures of nude adult women found online), and petitioner proposed that they meet for oral sex. Ultimately, petitioner and the ostensible girl arranged a time and place to meet for oral sex. Smith, 300 Or.App. at 102. Police officers arrested petitioner when he arrived at the agreed-upon location. Id. The state later charged him with luring a minor, first-degree online sexual corruption of a child, and attempted second-degree sexual abuse. Id. Petitioner exercised his right to a jury trial. At trial, the state introduced the text messages as evidence and called a detective, who had impersonated the girl in the text messages, to the stand. Id. The detective explained his extensive experience as a police officer in the investigation of-as relevant here-crimes against children. The detective then testified that he had investigated cases similar to petitioner's in the past, and that, based on that experience, petitioner had engaged in "grooming" the impersonated girl through his interactions with her. Smith, 300 Or.App. at 102-03. Petitioner's defense counsel did not object to the detective's testimony. Petitioner also testified and admitted that he sent the text messages, that he knew the ostensible girl was underage, and that he agreed to meet the girl for oral sex. Given the evidence of his conduct, rather than dispute the facts underlying the charges, petitioner raised the defense of entrapment. The jury later returned a verdict finding petitioner guilty of the charged crimes. Smith, 300 Or.App. at 102.

Petitioner appealed. On appeal, he argued that the trial court plainly erred when it did not sua sponte strike the detective's testimony that petitioner engaged in "grooming" through the text messages because, according to petitioner, that testimony about "grooming" was scientific evidence for which the state did not lay an adequate foundation to admit. Id. We held that the trial court did not err because the assertion that the detective's testimony was scientific evidence was not beyond reasonable dispute, so the trial court did not plainly err in not striking the detective's testimony. Id. at 105.

Petitioner then initiated the current post-conviction proceeding. He argued, as he does on appeal, that his defense counsel was ineffective and inadequate under the state and federal constitutions for failing to object to the detective's allegedly improper "grooming" testimony because a criminal defense attorney exercising reasonable professional skill and judgment would have objected to that testimony on the basis that it was scientific testimony for which the state had not laid an adequate foundation. The post-conviction court denied relief, concluding that petitioner had proved neither deficient performance nor prejudice. Petitioner appealed.

As noted, petitioner asserts that his counsel's performance was inadequate and ineffective under both the state and federal constitutions. The standards for postconviction relief under both the state and federal constitutions are "functionally equivalent": a petitioner must show that defense counsel performed deficiently, and that the petitioner suffered prejudice as a result of the deficient representation. Smith v. Kelly, 318 Or.App. 567 568-69, 508 P.3d 77 (2022), rev den, 370 Or. 822 (2023). To...