Sanchez-Perez v. Kelly , 316 Or. App. 124 ( 2021 )

124
Submitted October 28, affirmed December 1, 2021, petition for review denied
May 19, 2022 (369 Or 733)
JAVIER IVAN SANCHEZ-PEREZ,
Petitioner-Appellant,
v.
Brandon KELLY,
Superintendent,
Oregon State Penitentiary,
Defendant-Respondent.
Marion County Circuit Court
16CV04162; A173153
500 P3d 772
Dale W. Penn, Senior Judge.
Jedediah Peterson and O’Connor Weber LLC filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Greg Rios, Assistant Attorney General,
filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Kamins, Judge.
PER CURIAM
Affirmed.
Cite as 316 Or App 124 (2021) 125
PER CURIAM
Petitioner seeks post-conviction relief from several
convictions relating to the murder of a member of a rival
gang. Petitioner argues that, because he and another man
were involved in the shooting, the jury was required to agree
on a theory of liability: whether petitioner was the principal
or an accomplice to the crime. Because trial counsel did not
request a jury concurrence instruction or that the state elect
a theory of liability, petitioner alleges counsel was consti-
tutionally inadequate and ineffective. We conclude that the
post-conviction court correctly rejected this claim because,
assuming trial counsel was deficient, petitioner was not
prejudiced. See State v. Munoz, 270 Or App 490, 500, 348
P3d 296, rev den, 357 Or 596 (2015) (concluding that fail-
ure to give a concurrence instruction was harmless when
the competing factual scenarios both necessarily supported
principal liability).
Petitioner next contends that trial counsel was
ineffective for failing to object as hearsay to two statements
relating to the eyewitness’s knowledge of the identity of the
shooter. However, those two statements were not offered for
their truth; one was offered to explain why one of the wit-
nesses did not come forward, and the other was offered to
refute an assertion about how one of the witnesses learned
the shooter’s identity. Thus, they were not hearsay. See
OEC 801(3) (defining hearsay as “a statement, other than
one made by the declarant while testifying at the trial or
hearing, offered in evidence to prove the truth of the mat-
ter asserted”). Therefore, the post-conviction court correctly
concluded that trial counsel was not ineffective for failing to
object on that basis.
Affirmed.