Rudnitskyy v. State of Oregon ( 2020 )

549
Argued and submitted October 30, 2018, affirmed April 15, 2020
PETR VASILYEVICH RUDNITSKYY,
Petitioner-Appellant,
v.
STATE OF OREGON,
Defendant-Respondent.
Clackamas County Circuit Court
16CV15467; A165073
464 P3d 471
Petitioner was convicted of unlawful possession of heroin following a jury
trial and now appeals a judgment denying him post-conviction relief. Petitioner
argues that he received constitutionally inadequate and ineffective assistance of
counsel during his trial. Specifically, petitioner argues that trial counsel’s perfor-
mance was deficient when counsel first volunteered, and then allowed the prose-
cution to introduce into evidence and argue, the fact that petitioner had admitted
to the arresting officer that he had previously used heroin. Petitioner also argues
that trial counsel’s errors were prejudicial to his case. The state contends that
trial counsel’s actions were reasonable and that, alternatively, the alleged errors
did not prejudice petitioner. Held: The post-conviction court did not err. Petitioner
did not meet his burden of establishing that trial counsel failed to exercise rea-
sonable professional skill and judgment. Considering the circumstances at the
time of the alleged errors, trial counsel’s performance fell within the range of
reasonably available alternatives.
Affirmed.
Kathie F. Steele, Judge.
Brian P. Conry argued the cause and filed the briefs for
appellant.
Rolf C. Moan, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before DeHoog, Presiding Judge, and Aoyagi, Judge, and
Brewer, Senior Judge.
DeHOOG, P. J.
Affirmed.
550 Rudnitskyy v. State of Oregon
DeHOOG, P. J.
Petitioner appeals a judgment denying him post-
conviction relief based upon the performance of his crimi-
nal defense attorney. In the underlying prosecution, a jury
found petitioner guilty of unlawful possession of heroin,
ORS 475.854,1 after hearing, in addition to other evidence,
an officer testify that petitioner had acknowledged smoking
heroin two months before the charged incident. On appeal of
the post-conviction court’s ruling, petitioner argues that he
received constitutionally inadequate and ineffective assis-
tance of counsel when his attorney (1) volunteered during
his opening statement that petitioner had made that admis-
sion; (2) failed to object under OEC 403 when the officer
testified to the admission; and (3) failed to take corrective
action when the prosecution relied on petitioner’s admission
to support a propensity-based closing argument. Petitioner
further argues that counsel’s acts and omissions, both inde-
pendently and cumulatively, caused him prejudice, and that
the post-conviction court employed the wrong prejudice
standard when ruling otherwise. The state responds that
trial counsel’s performance was not constitutionally defec-
tive, because (1) counsel reasonably chose to acknowledge
petitioner’s admission before the state brought it up; (2) an
OEC 403 objection to that evidence would have been unsuc-
cessful; and (3) the state did not argue a propensity theory
in closing. The state alternatively argues that, even if trial
counsel performed deficiently, that performance did not
prejudice petitioner. For the reasons that follow, we conclude
that petitioner has not established that the post-conviction
court erred in denying him relief. Accordingly, we affirm.
“We review the grant or denial of post-conviction
relief for legal error.” Waldorf v. Premo, 301 Or App 572,
573, 457 P3d 298 (2019). In doing so, “[w]e accept the post-
conviction court’s express and implicit findings of fact if
there is evidence in the record to support them.” Id. We will
not, however, find that a post-conviction court made any
implicit findings that are inconsistent with, or unnecessary
to, the court’s ultimate conclusion. Pereida-Alba v. Coursey,
1
ORS 475.854 has been amended since defendant committed his crime; how-
ever, because those amendments do not affect our analysis, we refer to the cur-
rent version of the statute in this opinion.
Cite as 303 Or App 549 (2020) 551
356 Or 654, 670-71, 342 P3d 70 (2015). We state the facts
accordingly.
Petitioner’s underlying charge arose from an inci-
dent in which a witness had reported seeing a suspected
drug deal in a restaurant parking lot. The responding
officer, Schoenfeld, arrived within a minute of being dis-
patched. Schoenfeld found the car that the caller had iden-
tified parked in the corner of the lot. A man was leaning on
the open driver-side window, and two men, petitioner and a
passenger, were seated in the driver’s and front passenger’s
seats. Both petitioner and his passenger were holding straws
and cigarette lighters. Schoenfeld subsequently found both
a large roll and small pieces of aluminum foil in petitioner’s
car. According to Schoenfeld, those items were likely used to
smoke heroin through a method called “chasing the dragon.”
There was no indication, however, that petitioner was under
the influence of heroin.
After advising petitioner of his Miranda rights,
Schoenfeld told him that a witness had seen him engaging
in a drug deal and asked petitioner for his side of the story.
Petitioner responded that, although the drug purchase had
been made through the driver-side window, the purchase
had been for his friend, who had been seated in the passen-
ger seat. Petitioner explained that he had given another per-
son 20 dollars for the heroin, which he immediately handed
to his friend, who was sick from heroin withdrawal. In
Schoenfeld’s view, petitioner’s friend was uncooperative and
“odd,” but he was not exhibiting behavior consistent with
heroin withdrawal. Schoenfeld then asked petitioner when
he had last smoked heroin, and petitioner told him that “he
had not used heroin in over two months, as he had taken a
trip to the Ukraine recently.”
Following the arrest of petitioner and his passen-
ger, the responding officers later found an amount of heroin
in petitioner’s car that was small, even for personal-use pur-
poses, and petitioner’s passenger subsequently left evidence
in a patrol car that indicated that he had smoked at least
some of the heroin that had been purchased. Nonetheless, a
grand jury ultimately indicted petitioner for unlawful pos-
session of heroin, ORS 475.854.
552 Rudnitskyy v. State of Oregon
At petitioner’s ensuing trial, his attorney stated in
opening that “[petitioner] * * * is going to tell you that he
hadn’t done heroin in a number of months. He wasn’t using
heroin and he was staying off of it.” Counsel explained that,
even though petitioner had been able to stay clean, his
friend had not been. Consistent with petitioner’s statement
to Schoenfeld, counsel acknowledged that petitioner had
purchased the heroin, but said that he had done so with his
friend’s money and had handed the heroin to him so that
he would not be sick. Counsel told the jury that, as a result,
petitioner could not be found guilty of unlawfully possessing
heroin, because he had never exercised actual control over
the heroin, nor had he had the right to dominion or control
over it.2
Despite having candidly acknowledged petition-
er’s historical drug use during opening statements, defense
counsel later objected when Schoenfeld testified about peti-
tioner’s admission to him.
“[Prosecutor:] This is very important so I want to go
through this. [Petitioner] told you he took the heroin from
the drug dealer, held it in his hand, and then passed it on
to [his passenger]?
“[Schoenfeld:] Yes.
“[Prosecutor:] Go ahead.
“[Schoenfeld:] I asked him when he had last used her-
oin, and he told me that he had not used heroin—
“[Trial Counsel:] Objection. Relevance.
“THE COURT: Overruled. Go ahead.
“[Schoenfeld:] I asked [petitioner] when he had last used
heroin, and he told me that he had not used heroin in over
two months, as he had taken a trip to the Ukraine recently.”
2
At trial, the jury was provided with the following definition of “possess” for
purposes of determining whether petitioner was guilty of possessing heroin:
“The term ‘possess’ means to have physical custody or otherwise to exer-
cise dominion or control over property. The term ‘possess’ includes two types
of possession, actual and constructive. A person has actual possession of
property when the person has physical dominion or control over the property.
A person has constructive possession of property when the person does not
have physical custody of property but nevertheless either exercises control
over it or has the right to exercise control over it.”
Cite as 303 Or App 549 (2020) 553
Ultimately, petitioner did not testify, and defense
counsel did not otherwise address petitioner’s admissions or
present any other evidence. However, petitioner’s admission
of past heroin use came up a third time during the prosecu-
tion’s closing argument.
“And I will leave you with one last analogy. That is,
[say] today [we were] talking about alcohol instead of her-
oin. And you can use your reason and common sense to
make inferences, so let’s talk about those. Based on your
common life experience you can kind of put two and two
together[.] * * * Let’s say there is someone who used to drink
alcohol. Goes back to Russia, says he went back to Russia
and doesn’t drink anymore. In fact, [his choice of drink is
a] martini. * * * He says he gives it up. It was so bad he had
to go to Europe to do it.
“What did he say? He said, I haven’t used heroin for
two months. * * * Let’s think about that with our alcohol
example. The defendant takes him to a liquor store, goes
and buys the vodka and hands it over to him, they pull
to a spot and are about to drink it, and he’s holding the
martini shaker and a martini glass in his hand, and you
walk up, and you see him shove it under his legs. The
response to that is, that is ridiculous. You’re about to
have a drink there. The two of you bought that to drink
together.”
The jury unanimously voted to convict petitioner.
Following an unsuccessful appeal on other grounds, State v.
Rudnitskyy, 266 Or App 560, 338 P3d 742 (2014), rev den, 357
Or 112 (2015), petitioner sought post-conviction relief, alleg-
ing inadequate and ineffective assistance of trial counsel. In
a letter opinion, the post-conviction court denied petitioner
relief, concluding that “[p]etitioner’s trial attorney initiated
the evidence at trial of [p]etitioner’s ‘prior bad acts’ [i.e., peti-
tioner’s admitted use of heroin months before the charged
incident] but, even if improper, there was sufficient evidence
in the record for the jury to find [p]etitioner guilty without
such evidence.”3 Petitioner now appeals the post-conviction
court’s resulting judgment.
3
The majority of the post-conviction court’s opinion letter addressed matters
that are not at issue on appeal.
554 Rudnitskyy v. State of Oregon
On appeal, petitioner argues that (1) post-conviction
relief is warranted because trial counsel’s performance
was constitutionally deficient under Article I, section 11,
of the Oregon Constitution and the Sixth and Fourteenth
Amendments to the United States Constitution; and (2) the
post-conviction court applied the wrong legal standard in
assessing whether counsel’s allegedly deficient performance
had prejudiced petitioner. Petitioner argues that counsel’s
prejudicial acknowledgment of his prior drug use during
opening statement cannot be viewed as a reasonable tac-
tical decision warranting deference, because it offered no
benefit to petitioner, because the admissibility of that evi-
dence was not inevitable, and because, in any event, counsel
later failed to further any such strategic objective at trial.
Petitioner further argues that, even if such a decision could
have been a tactical choice, the state’s assertion that it was
a tactical choice here nonetheless fails because there is no
evidence to support the contention that trial counsel’s deci-
sion to acknowledge petitioner’s prior drug use was a tacti-
cal one.
Separately, but relatedly, petitioner identifies two
other instances in which trial counsel allegedly failed to
act with the requisite degree of professional skill and judg-
ment. First, he argues that trial counsel’s performance was
deficient when he objected to Schoenfeld’s testimony on rel-
evance grounds but failed to contend that the evidence was
unduly prejudicial under OEC 403. In petitioner’s view, his
admission of prior use had no probative value except as pro-
pensity evidence, because the prosecution was not required
to prove that he knew the controlled substance he had pur-
chased for his friend was heroin. Second, petitioner argues
that counsel should have objected during closing argument,
because the prosecution’s use of that prejudicial propensity
evidence in closing improperly suggested that petitioner
“should be convicted because of his prior heroin use.”
Finally, in the event that we agree with petitioner
that his trial attorney’s performance was deficient in one
or more of those ways, he argues that the post-conviction
court inappropriately relied on a sufficiency-of-the-evidence
standard in concluding that, to the extent that counsel fell
Cite as 303 Or App 549 (2020) 555
short of constitutional expectations, that deficiency did not
prejudice petitioner. Properly evaluated, petitioner argues,
counsel’s performance entitles him to post-conviction relief
because, had counsel not performed deficiently, it is “reason-
ably probable that the outcome of the case might have been
different.”
The state responds that trial counsel’s perfor-
mance was not constitutionally deficient, and that, if it was,
counsel’s acts or omissions did not prejudice petitioner. As
noted, the state argues that trial counsel made a reason-
able tactical choice to acknowledge petitioner’s admission of
prior heroin use, because doing so could potentially benefit
petitioner. The state further argues that, because petition-
er’s admission of prior use would have been allowed into
evidence whether or not defense counsel objected on OEC
403 grounds, it was reasonable both to acknowledge the
admission in opening statement and to forgo an OEC 403
objection later at trial. For much the same reason, the state
reasons, neither counsel’s opening statement nor his fail-
ure to object under OEC 403 can have prejudiced petitioner.
As to the prosecutor’s closing argument, the state contends
that it was not propensity based; rather, it was a summary
of the evidence and petitioner’s defense theory that used
an analogy to demonstrate the implausibility of that the-
ory. Finally, the state contends that, even if counsel’s per-
formance was deficient, the post-conviction court properly
concluded that petitioner failed to show prejudice; that is,
when read in its entirety, the post-conviction court’s opinion
letter demonstrates that the court applied the correct preju-
dice standard.
We begin with a review of the applicable legal stan-
dards. “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 the Constitution of the
State of Oregon, or both, and which denial rendered the
conviction void.’ ” Green v. Franke, 357 Or 301, 311, 350 P3d
188 (2015) (quoting ORS 138.530(1)(a)). To obtain relief on a
claim of inadequate assistance of counsel, petitioner must
establish, by a preponderance of the evidence, that his trial
counsel did not exercise the professional skill and judgment
556 Rudnitskyy v. State of Oregon
required by Article I, section 11, and that he suffered preju-
dice as a result.4 Waldorf, 301 Or App at 575-76.
In discussing the performance prong of that
analysis, the Supreme Court has “made clear” that the “con-
stitution gives no defendant the right to a perfect defense—
seldom does a lawyer walk away from a trial without think-
ing of something that might have been done differently or
that [counsel] would have preferred to have avoided.” Montez
v. Czerniak, 355 Or 1, 7, 322 P3d 487, adh’d to as modified on
recons, 355 Or 598, 330 P3d 595 (2014) (internal quotation
marks omitted). Thus, to show that counsel’s performance
was constitutionally inadequate, it is not enough to show
that the lawyer could or even should have chosen a different
course of action; petitioner must show that any reasonable
attorney would have taken the steps that petitioner now
asserts his attorney should have taken. Waldorf, 301 Or App
at 580; see also Sullivan v. Popoff, 274 Or App 222, 232, 360
P3d 625 (2015), rev den, 358 Or 833 (2016) (framing the per-
formance prong as asking whether “in the circumstances
that confronted petitioner’s trial counsel, no reasonable trial
lawyer could make the decision that petitioner’s trial coun-
sel, in fact, made”). And, in determining whether petitioner
has made that showing, we evaluate the “reasonableness
of counsel’s performance * * * from counsel’s perspective at
the time of the alleged error and in light of all the circum-
stances.” Docken v. Myrick, 287 Or App 260, 271, 402 P3d
755 (2017) (internal quotation marks and brackets omitted).
If petitioner has met his burden of establishing that
counsel failed to exercise reasonable professional skill and
judgment in some aspect of his defense, we then must con-
sider whether that deficient performance was prejudicial. To
satisfy the prejudice prong of the analysis, petitioner “must
establish that his trial attorney’s acts or omissions tended to
affect the outcome of his case.” Waldorf, 301 Or App at 576.
4
Petitioner separately requests relief under the Oregon and federal constitu-
tions. However, those “standards for determining whether counsel’s performance
was deficient are ‘functionally equivalent.’ ” Waldorf, 301 Or App at 576 n 3 (quot-
ing Montez v. Czerniak, 355 Or 1, 6, 322 P3d 487, adh’d to as modified on recons,
355 Or 598, 330 P3d 595 (2014)). Moreover, petitioner does not assert that, even
if his trial counsel’s performance was adequate under the Oregon Constitution it
nonetheless fell short under the federal standard. Accordingly, we address only
petitioner’s claims under the Oregon Constitution.
Cite as 303 Or App 549 (2020) 557
We turn to petitioner’s contentions with those standards in
mind.
We first address whether trial counsel’s perfor-
mance fell below the constitutional standard in any of the
three instances alleged by petitioner: (1) failing to make a
reasonable tactical decision when volunteering information
about petitioner’s admission of prior heroin use, (2) failing
to object under OEC 403 when Schoenfeld testified to that
admission, and (3) failing to object, move to strike, or request
a mistrial during the prosecution’s closing argument.
We begin with trial counsel’s decision to acknowl-
edge petitioner’s admission of prior heroin use in opening
statement and whether, at the time the decision was made,
it reflected an absence of professional skill and judgment. In
making that assessment, we are cognizant that the consti-
tutional standard “allows for tactical choices that backfire,
because, by their nature, trials often involve risk.” Johnson
v. Premo, 361 Or 688, 702, 399 P3d 431 (2017) (internal quo-
tation marks omitted). It is not sufficient, however, simply
to label any decision that proves unwise a “tactical” deci-
sion; for a tactical decision “to be considered an exercise of
professional skill and judgment, [it] must be grounded on
a reasonable investigation and should include an evalu-
ation of the likely costs and potential benefits of the con-
templated action.” Farmer v. Premo, 363 Or 679, 690, 427
P3d 170 (2018) (internal quotation marks and citation
omitted). Notably, even where, as here, the defendant in a
post-conviction proceeding asserts that counsel’s course of
action was the product of a reasonable tactical decision, the
burden of establishing that counsel failed to act with the
requisite professional skill and judgment remains with the
petitioner. Alne v. Nooth, 288 Or App 307, 318, 406 P3d 109
(2017) (following Pereida-Alba, 356 Or at 662). More specifi-
cally, petitioner has the burden of both production and proof
to “establish that his or her counsel did not make all sig-
nificant decisions in the exercise of reasonable professional
judgment.” Pereida-Alba, 356 Or at 672 n 14 (internal quota-
tion marks omitted).
Here, emphasizing that reasonable tactical choices
“must be grounded on a reasonable investigation,” Johnson,
558 Rudnitskyy v. State of Oregon
361 Or at 703 (internal quotation marks omitted), petitioner
argues that trial counsel’s decision cannot have followed
such an investigation, because, if it had, counsel (1) would
have recognized that the evidence of petitioner’s admission
would not be admissible and would provide “absolutely no
benefit” to petitioner; or (2) would have taken steps to fur-
ther the strategy initiated in opening statement later in the
trial. We conclude otherwise.
First, we disagree with petitioner’s contention that
trial counsel’s decision had no potential to benefit petitioner.
Under the circumstances, counsel would likely have rec-
ognized that, even in the absence of petitioner’s admission
of prior use, the evidence of petitioner’s guilt was strong.
This was a simple case of possession. Petitioner admitted to
Schoenfeld that he had paid 20 dollars to a third party for
the heroin with full knowledge of what he was buying, that
he had taken the heroin in hand for at least some amount of
time, and that he had then handed it over to his friend, who
was seated in the passenger seat of his car.5 Notwithstanding
his defense theory, which was that petitioner’s conduct did
not constitute dominion or control and therefore did not con-
stitute unlawful possession, counsel would have known that
his theory was, at least, quite vulnerable. See State v. Fries,
344 Or 541, 546, 185 P3d 453 (2008) (“As a general rule, ‘to
have physical possession’ of property means to have bodily
or physical control of it.”); id. at 548 (“The fact that a person
holds property at another’s direction does not necessarily
mean that he or she does not actually possess it.”).
In light of those circumstances, an attorney exercis-
ing professional skill and judgment could reasonably have
concluded that the best strategy was to be candid from the
start about the evidence that the jury would likely hear,
as well as about petitioner’s obvious familiarity with drug
5
The prosecution highlighted this evidence both in opening statement and
closing argument. During opening, the prosecutor explained that, when peti-
tioner was handed the heroin, he had actual possession of it, and, as he prepared
to smoke the heroin after handing it to his friend, he remained at least in con-
structive possession of it. Further, in closing, the prosecution emphasized that
there is no “minimum time requirement” for possession and that petitioner had
admitted to possession when he discussed buying the heroin for his friend and
taking it from the dealer.
Cite as 303 Or App 549 (2020) 559
culture and the phenomenon of “dope-sickness.”6 Defense
counsel evidently hoped to persuade the jury that petitioner
was not legally culpable for obtaining the heroin and get-
ting it to his friend, even though he had admittedly handled
illegal drugs in carrying out that objective. Thus, with rela-
tively little resistance from the prosecution, counsel argued
his theory that petitioner could not be found guilty of pos-
session, because he “never exercised control over that heroin
because it wasn’t his.” Under that theory, because petitioner
had no interest in the heroin and was merely carrying out a
transaction on behalf of his friend, the fact that he held the
heroin could not establish possession.7 Given that petition-
er’s defense depended upon the jury trusting his explana-
tion, it was reasonable for counsel to try to appear as candid
and forthcoming as possible about petitioner’s lifestyle and
the evidence that the jury would hear, which, as we discuss
below, counsel could reasonably expect to include petition-
er’s admission of prior use. Under those circumstances, we
reject petitioner’s contention that counsel’s tactical decision
was of no potential benefit to him.
As the foregoing suggests, we likewise reject peti-
tioner’s argument that trial counsel’s apparent belief that
the evidence of petitioner’s admission was likely to come in
reflected an absence of professional skill and judgment.8 The
premise of petitioner’s argument on appeal is that, because
that evidence was relevant only for improper propensity
purposes, it would not have been admissible over petition-
er’s objection if counsel had not brought it up himself during
his opening statement. The state disputes that premise and
6
We further note that, given the strong evidence of guilt available to the
prosecution, reasonable counsel could have viewed there to be little additional
risk in disclosing petitioner’s admission of prior heroin use.
7
Although the prosecution argued that there was no minimum time require-
ment to unlawful possession, it did not ask the court to prohibit defense counsel
from arguing that petitioner’s admittedly purposeful and knowing handling of
the heroin was not a crime. Further, the prosecution did not charge petitioner
with aiding or abetting a delivery of heroin, nor, for that reason, did it advance
any argument to that effect.
8
Although petitioner argues that the evidence of his admission of prior her-
oin use would not have been admissible if offered by the prosecution, he agreed
at oral argument on appeal that, if it had been inevitable that the evidence would
be admitted, it would have been reasonable for counsel to discuss the evidence in
his opening statement.
560 Rudnitskyy v. State of Oregon
argues that, contrary to petitioner’s view, the evidence was
relevant for a nonpropensity purpose under OEC 404(3)—
petitioner’s knowledge. See OEC 404(3) (“Evidence of other
crimes, wrongs or acts * * * may * * * be admissible for other
purposes, such as proof of * * * knowledge[.]”). Specifically,
because petitioner’s admission of prior heroin use estab-
lished that he was familiar with heroin, that evidence was
relevant to prove that he knew the substance that he pos-
sessed was heroin. For the reasons that follow, we conclude
that an attorney exercising professional skill and judgment
could reasonably believe that the evidence of petitioner’s
admission would likely be admitted for that purpose and act
in accordance with that belief.
Petitioner’s argument that the evidence was not rel-
evant for any nonpropensity purpose is based, in part, on
our decision in State v. Engen, 164 Or App 591, 993 P2d
161 (1999), rev den, 330 Or 331 (2000). According to peti-
tioner, Engen establishes that the evidence was not, as the
state argues, relevant to prove his familiarity with heroin,
because the prosecution was not required to prove that he
knew that the controlled substance he was handling was
heroin; it only had to prove that he knew it was a controlled
substance. See Engen, 164 Or App at 607-09 (to establish
offense of unlawful possession, the state had only to prove
that the defendant knew that he possessed a controlled
substance, not that he knew which specific substance he
possessed). However, in Engen, the defendant had been
prosecuted under former ORS 475.992 (1999), renumbered
as ORS 475.752 (2011), which, at the time, generically pro-
hibited the possession of controlled substances rather than
the possession of a specific controlled substance. 164 Or App
at 603-04 (discussing former ORS 475.992 (1999)); see also
State v. Harper, 296 Or App 125, 131-32, 436 P3d 44 (2019)
(contrasting statute at issue in Engen with ORS 475.894(1)
(unlawful possession of methamphetamine), and concluding
that the more specific statute required state to establish
that the defendant knew the character of the controlled sub-
stance in his or her possession). Here, like the defendant in
Harper, petitioner was prosecuted under a statute applicable
to a specific controlled substance—heroin. See ORS 475.854
(defining offense of unlawful possession of heroin). Thus,
Cite as 303 Or App 549 (2020) 561
even though no decision to date has reached the same con-
clusion as Harper with regard to ORS 475.854, it stands to
reason that the state may well have had to prove that peti-
tioner knew that the controlled substance he had purchased
was heroin to procure a conviction under that statute. See
Harper, 296 Or App at 132.
Furthermore, although the Harper decision, which
issued after petitioner’s trial, cannot have been known to
his attorney at that time, our reasoning in that case demon-
strates why, notwithstanding the holding in Engen, a rea-
sonable attorney could have concluded that the evidence
of petitioner’s admission of prior heroin use would likely
be admitted, even if counsel objected.9 Thus, as petitioner
acknowledges on appeal, because trial counsel reasonably
could have believed that the admission of petitioner’s prior
heroin use was likely, the decision to discuss the admission
in his opening statement did not reflect an absence of profes-
sional skill and judgment.
Petitioner makes a final argument as to trial coun-
sel’s performance in his opening statement: Because counsel
later objected to Schoenfeld’s testimony regarding petition-
er’s admission, counsel’s decision to discuss that evidence
himself during opening cannot have been a reasonable tac-
tical choice.10 However, whatever counsel’s rationale may
90
We emphasize that the evidence would not necessarily have been admit-
ted if only offered by the prosecution. See State v. Bowen, 7 Or App 629, 633,
492 P2d 480 (1972) (holding that “[b]ecause the defendant’s knowledge was not
a genuinely controverted issue in the case,” the prejudicial effect of evidence of
prior marijuana possession charges outweighed “any legitimate probative value”
in establishing that defendant knew the narcotic nature of the substance for the
charge of unlawful sale of a narcotic drug (internal quotation marks omitted)).
However, as discussed below with respect to petitioner’s OEC 403 argument, the
fact that the evidence may not ultimately have been admitted does not mean that
it was unreasonable to believe that it likely would be.
10
We do not understand petitioner to argue that the later inconsistencies
were evidence that trial “counsel inexplicably failed to make an argument neces-
sary to support his tactical decision.” Ayer v. Coursey, 253 Or App 726, 739, 292
P3d 595 (2012). In Ayer, we noted that the trial attorney had effectively allowed
the state to “exclude evidence that was critical to his case” and “that the argu-
ment counsel did make did not allow even the possibility of introducing that evi-
dence for the purpose for which it was essential to the defense.” Id. The result of
the attorney’s deficient conduct in Ayer was that he could not support his theory
that someone other than the defendant had abused the victim. Id. Here, however,
trial counsel’s later inconsistent decisions did not undercut his tactical decision
in the same way. Instead, trial counsel was still able to refer to evidence that the
562 Rudnitskyy v. State of Oregon
have been for later objecting—on relevance grounds—to tes-
timony about evidence that he himself had told the jury that
they would hear, we reject any implication that the later
decision proves that counsel’s earlier performance was con-
stitutionally deficient. Petitioner has not shown that coun-
sel anticipated at the time of his opening statement that he
would later object to that testimony or that his objection nec-
essarily indicated that he had not made a reasoned choice
at that earlier time. As a result, petitioner has not met his
burden of establishing that trial counsel’s tactical decision
was unreasonable when counsel made it.
We turn to petitioner’s remaining arguments regard-
ing trial counsel’s performance. We begin with petitioner’s
assertion that trial counsel’s failure to object to Schoenfeld’s
testimony on OEC 40311 grounds—as opposed to merely on
relevance grounds—reflected an absence of professional skill
and judgment. For largely the same reasons that we rejected
petitioner’s related arguments regarding counsel’s opening
statement, we also reject his “failure to object on the correct
basis” argument. As discussed, 303 Or App at 561 n 9, we
recognize that it may not have been inevitable that the trial
court would admit the evidence over an OEC 403 objection.
Nonetheless, under the circumstances, reasonable counsel
could have considered such an objection unlikely to succeed
(or to provide grounds for appeal if it did not).
Several considerations support that conclusion.
First, as noted, the prosecution had at least one nonpropen-
sity basis for admitting the evidence that arguably went to
a material fact of the case: whether petitioner’s possession
of heroin had been “knowing.” Second, recognizing that the
line between propensity evidence and evidence admitted for
other nonpropensity purposes under OEC 404(3)—such as
motive or intent—is not well defined, counsel may well have
heroin was for petitioner’s friend (the only person that the record indicates had
actually smoked the heroin), in support of his argument that petitioner’s lack of
right to control the heroin was comparable to holding a friend’s drug prescription
for a brief amount of time and did not amount to possession.
11
OEC 403 provides, “Although relevant, evidence may be excluded if its pro-
bative value is substantially outweighed by the danger of unfair prejudice, confu-
sion of the issues, or misleading the jury, or by considerations of undue delay or
needless presentation of cumulative evidence.”
Cite as 303 Or App 549 (2020) 563
anticipated that the trial court would view the evidence as
more probative than prejudicial on one of those other bases,
even if it could potentially be viewed as implicating his pro-
pensity to use drugs. Finally, given the context of petitioner’s
arrest, counsel may also have believed that, whether or not
petitioner’s admission came in, it would have been obvious
to the jury that petitioner had some prior involvement with
heroin, and that the trial court would have seen no benefit
to hiding that fact by excluding petitioner’s admission under
OEC 403.
Therefore, despite any arguable potential for prej-
udice, a reasonable attorney could have concluded that
making an OEC 403 objection was unlikely to succeed.12
See State v. Shaw, 338 Or 586, 614, 113 P3d 898 (2005)
(“[U]nder OEC 403, the critical inquiry is whether the evi-
dence improperly appeals to the preferences of the trier
of fact for reasons that are unrelated to the power of the
evidence to establish a material fact.” (Internal quotation
marks omitted.)). As a result, petitioner has not established
that trial counsel was constitutionally deficient for failing to
make an OEC 403 objection.
Turning, finally, to the prosecution’s closing argu-
ment, we conclude that petitioner has not established that
counsel failed to exercise professional skill and judgment
by not objecting, moving to strike, or requesting a mistrial
during that argument. Petitioner argues that every reason-
able attorney would have taken corrective action in response
to the prosecutor’s inappropriate and prejudicial propensity-
based closing argument. Even assuming, without deciding,
that the prosecutor’s closing argument invoked character-
based reasoning—and that any reasonable attorney would
have recognized it as such—we conclude that counsel’s fail-
ure to respond did not constitute inadequate assistance of
counsel. Under the circumstances, a reasonable attorney
could have viewed any objection as untimely or simply inef-
fective. The underlying evidence—petitioner’s admission
that he had previously used heroin—had been admitted
12
That is not to suggest that, if an OEC 403 objection would have been meri-
torious, it would necessarily follow that all reasonable counsel would have raised
that objection under the circumstances. See Popoff, 274 Or App at 232-33.
564 Rudnitskyy v. State of Oregon
without limitation; arguably, at least, it could therefore have
been considered by the jury for any purpose. See Popoff, 274
Or App at 236 (De Muniz, S. J., concurring) (acknowledging
that the jury is not limited in how it may consider hear-
say evidence that is presented without objection or limiting
instruction); State v. Stubbs, 256 Or App 817, 827-28, 304
P3d 40 (2013) (“Regardless of whether the evidence * * * was
actually relevant to the case, the jury was entitled to con-
sider that evidence because it had been admitted without
objection from either party.”); State v. DeBolt, 176 Or App
159, 163, 30 P3d 1207 (2001) (“In the absence of an objection,
the jury was not limited as to how it could consider the [tes-
timonial] evidence.”); State v. Keller, 315 Or 273, 283, 844
P2d 195 (1993) (“An objection [to the admission of evidence]
is ‘timely’ [under OEC 103(1)(a)] if it is made as soon as its
applicability to the offered evidence is known to the oppo-
nent of the evidence.”). Further, petitioner does not assert
that trial counsel’s failure to request a limiting instruction
under OEC 10513 itself constituted inadequate assistance of
counsel. Indeed, petitioner has expressly acknowledged that
counsel’s failure to request a limiting instruction is not at
issue here. As a result, the post-conviction court did not err
in rejecting petitioner’s argument that counsel’s failure to
respond to the prosecution’s closing argument entitled him
to post-conviction relief.
In sum, we conclude that petitioner has not satis-
fied his burden of demonstrating that post-conviction relief
is warranted, because he has not established that his trial
counsel failed to exercise reasonable professional skill and
judgment in any of the ways alleged. We recognize that,
in retrospect, counsel’s rationale for objecting to evidence
he had previously discussed is not immediately apparent.
Nonetheless, as we have explained, at the time of counsel’s
alleged missteps in representing petitioner, each decision
“fell within the range of reasonable decisions available to a
competent trial lawyer.” Popoff, 274 Or App at 232. Further,
having concluded that petitioner has not satisfied his burden
13
OEC 105 provides that “[w]hen evidence which is admissible as to one
party or for one purpose but not admissible as to another party or for another
purpose is admitted, the court, upon request, shall restrict the evidence to its
proper scope and instruct the jury accordingly.”
Cite as 303 Or App 549 (2020) 565
of proof as to any aspect of counsel’s performance, we need
not consider whether he was prejudiced by any such defi-
ciency or whether the post-conviction court applied the cor-
rect standard in determining that he was not.
Affirmed.