Siefken v. Premo
Siefken v. Premo
Opinion of the Court
Petitioner appeals a judgment denying his petition for post-conviction relief from his convictions for three counts of second-degree rape, ORS 163.365, three counts of third-degree rape, ORS 163.355, and two counts of third-degree sodomy, ORS 163.385. Petitioner contends, in his first assignment of error, that he was denied adequate assistance of counsel in the criminal proceeding that resulted in those convictions because his trial counsel failed to offer into evidence a handwritten note purportedly showing the victim’s past sexual behavior, which would have, according to petitioner, supported the defense theory of the case.
The following facts are undisputed on appeal. Petitioner was charged by indictment with 17 counts of sexual offenses allegedly committed against his stepdaughter, based on sexual contact with her over a period of years. At the criminal trial, a medical doctor testified that a physical examination of the victim was consistent with repeated sexual intercourse and the doctor diagnosed the victim as having been sexually abused. The victim, who was 15 years old at the time of the criminal trial, testified that petitioner was the only person with whom she had had sexual contact. Petitioner denied that he had sexual intercourse with the victim. One of his theories of defense was that the victim fabricated the allegations of sexual abuse as retribution for petitioner and the victim’s mother refusing to permit the victim to continue seeing an 18-year-old man with whom, according to petitioner, she had been sexually active.
The jury found petitioner guilty on eight of the 17 counts. Petitioner filed a direct appeal. We affirmed without opinion and the Supreme Court denied review. State v.
Petitioner then sought post-conviction relief, alleging in his second amended petition that he was denied adequate assistance of counsel, under the Sixth and Fourteenth Amendments to the United States Constitution and under Article I, section 11, of the Oregon Constitution, because trial counsel failed to exercise reasonable professional skill and judgment by, among other things, failing to “properly admit evidence of specific instances of sexual behavior engaged in by the alleged victim.”
At the post-conviction trial, petitioner testified about a handwritten note that he thought was important to the case.
The post-conviction court denied relief. In the handwritten portion of the court’s ruling regarding the note, the judgment states, “No foundation for Exhibit # 3. No testimony] as to who found or where. Not dated. No proof who wrote. Since not dated, no proof it impeaches V[ictim] since case came to light when she told friend she might be pregnant by petitioner].” In other words, petitioner did not establish the admissibility of the note.
When reviewing a decision by a post-conviction court, “[w]e are bound by the *** court’s factual findings
Petitioner bears the burden of proof to establish the allegations in his petition by a preponderance of the evidence. ORS 138.620(2). “The test for determining whether a petitioner has been denied adequate assistance of counsel, under both the state and federal constitutions, is two-pronged: First, the petitioner must show that his or her counsel performed inadequately. Second, the petitioner must demonstrate that he or she was prejudiced as a result of counsel’s error. Pereida-Alba v. Coursey, 356 Or 654, 661-62, 342 P3d 70 (2015); Strickland [v. Washington, 466 US 668, 688, 104 S Ct 2052, 80 L Ed 2d 674 (1984)].” Jackson v. Franke, 284 Or App 1, 3, 392 P3d 328 (2017).
To prove prejudice under the state constitution, petitioner was required to demonstrate that his trial counsel’s deficient performance “had a tendency to affect the result of the prosecution.” Green v. Franke, 357 Or 301, 321, 350 P3d 188 (2015) (internal quotation marks omitted). The Supreme Court has explained that “the tendency to affect the outcome standard demands more than mere possibility, but less than probability” of a different outcome of the jury trial. Id. at 322. For petitioner to prove prejudice under the federal constitution, he needed to show that there was a “reasonable probability that, but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 466 US at 694. Thus, to demonstrate prejudice, petitioner needed to show at the post-conviction trial that, had the note been admitted at his criminal trial, it would have had a tendency to affect the verdict. As a first step to make that showing, petitioner needed to prove that the note would have been admissible. See Tracy, 252 Or App at 170 (to show prejudice, petitioner had to “prove that investigation would have produced admissible evidence” that could have affected the outcome of the trial).
On appeal, petitioner argues that the post-conviction court erred in denying him relief because trial counsel could
OEC 901(1) states that “[t]he requirement of authentication * * * as a condition precedent to admissibility is satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims.” As noted, petitioner argues on appeal that his trial counsel could have called the victim’s mother or his daughter to authenticate the note at his criminal trial. However, petitioner did not call those witnesses to testify at the post-conviction trial or produce affidavits or deposition testimony to establish that those witnesses were available and willing to provide such authentication testimony at the criminal trial. Without that evidence, the post-conviction court had no knowledge of what the testimony of those witnesses would have actually been and whether that testimony could have authenticated the note.
Petitioner’s testimony at the post-conviction proceeding was not sufficient to support his position that the note could have been authenticated at his criminal trial.
Because the record contains no basis on which the post-conviction court could determine that the note could have been authenticated at petitioner’s criminal trial, petitioner failed to establish that he was prejudiced when his trial counsel did not offer that note into evidence. Therefore, the post-conviction court did not err in denying petitioner relief on that basis.
Affirmed.
We reject without written discussion petitioner’s second assignment of error and the supplemental assignment of error raised in petitioner’s pro se brief.
The four-page note was marked and admitted as Exhibit 3 for the post-conviction proceeding.
The deposition transcript was admitted as an exhibit at the post-conviction trial.
Petitioner also makes other arguments about the note’s admissibility and relevancy; however, we do not address those arguments given our conclusion that the note was not authenticated as a condition precedent to its admissibility.
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