Delgado-Juarez v. Cain ( 2020 )

83
Submitted July 3, 2018; reversed and remanded as to claim regarding
trial counsel’s failure to request a limiting instruction, otherwise affirmed
October 7, 2020
RAMON DELGADO-JUAREZ,
Petitioner-Appellant,
v.
Brad CAIN,
Superintendent,
Snake River Correctional Institution,
Defendant-Respondent.
Malheur County Circuit Court
14111227P; A163140
475 P3d 883
Petitioner appeals a judgment denying him post-conviction relief. In the
underlying criminal case, petitioner was convicted of several counts of first-
degree sexual abuse and first-degree sodomy involving two victims. In petition-
er’s second assignment of error, he argues that the post-conviction court erred in
denying him relief on his claim that his trial counsel had provided inadequate
and ineffective assistance of counsel when she elected not to seek a limiting
instruction, which would have informed the jury that they could not rely on facts
related to one victim to find that petitioner more likely committed the crimes
related to the other victim. Held: The post-conviction court erred. Trial counsel’s
decision not to request a limiting instruction was not the product of reasonable
professional skill and judgment; further, counsel’s decision was prejudicial to
petitioner.
Reversed and remanded as to claim regarding trial counsel’s failure to
request a limiting instruction; otherwise affirmed.
J. Burdette Pratt, Senior Judge.
Jed Peterson and O’Connor Weber LLC filed the brief for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before DeHoog, Presiding Judge, and DeVore, Judge, and
Aoyagi, Judge.
84 Delgado-Juarez v. Cain
DeHOOG, P. J.
Reversed and remanded as to claim regarding trial
counsel’s failure to request a limiting instruction; otherwise
affirmed.
DeVore, J., concurring in part; dissenting in part.
Cite as 307 Or App 83 (2020) 85
DeHOOG, P. J.
A jury convicted petitioner of eight counts of first-
degree sexual abuse and three counts of first-degree sod-
omy involving two alleged victims—his niece and his
daughter. Petitioner now appeals a judgment denying
him post-conviction relief regarding those convictions and
raises five assignments of error; we write to address one.1
In his second assignment of error, petitioner contends that
the post-conviction court erred in denying him relief on
his claim that his trial attorney had provided inadequate
and ineffective assistance of counsel when she elected not
to seek a limiting instruction, which would have told the
jury that they could not rely on facts related to the sexual
assault of one alleged victim as evidence that petitioner had
more likely sexually assaulted the other alleged victim. For
the reasons that follow, we conclude that trial counsel’s deci-
sion against requesting a limiting instruction was not the
product of reasonable professional skill and judgment; we
further conclude that counsel’s omission was prejudicial to
petitioner. Accordingly, the post-conviction court erred in
denying that claim, and we, therefore, reverse and remand
the post-conviction court’s judgment.
We review the post-conviction court’s denial of relief
for legal error. Waldorf v. Premo, 301 Or App 572, 573, 457
P3d 298 (2019), rev den, 366 Or 451 (2020) (applying that
standard). “We accept the post-conviction court’s express
and implicit findings of fact if there is evidence in the record
to support them.” Id.; see also Ball v. Gladden, 250 Or 485,
487, 443 P2d 621 (1968) (where court has not expressly
ruled on all facts relevant to decision and evidence could
support varying findings, court is presumed to have decided
facts in accordance with its conclusions). We state the facts
accordingly.
The underlying allegations involved two alleged
victims, petitioner’s niece, AB, and his adoptive daughter,
AR, both of whom testified at petitioner’s criminal trial. In
the summer of 2001, petitioner lived with his then-wife and
her two children, including AR. At the time, AB lived with
1
We reject the remaining assignments without written discussion.
86 Delgado-Juarez v. Cain
her own family less than two blocks away. According to AB,
one day, when she was seven years old, she was home alone
watching television when petitioner knocked on the door.
AB opened the door for petitioner and resumed watching
TV. Petitioner then approached AB on the sofa, sat down
next to her, put his hand on her stomach, and asked if he
could lick her “private spot”; AB responded “no.” Petitioner
persisted, first pulling down AB’s pants and underwear and
getting on top of her, and then pulling down his own pants.
AB testified that then she recalled feeling “something,”
which she thought was probably petitioner’s penis, “go in”
to her vagina, causing her sharp pain. AB then “blacked
out.” She recalled, however, that when petitioner stopped, he
first told AB not to tell anyone that he had come over to her
house, and then left.
AB ultimately disclosed her alleged abuse to a fam-
ily member when she was 17 years old. The family member
sought help on her behalf, and the police eventually became
involved. During the ensuing investigation into petitioner’s
alleged abuse of AB, the police learned of allegations that
petitioner had also abused his daughter, AR. AR testified at
petitioner’s trial that he had sexually abused her beginning
in 1994, when she was seven years old. At the time, AR said,
her family had lived together in a mobile home and had all
slept together in the same room, where there had been two
beds. According to AR, her mother had worked nights at the
time, while petitioner had stayed home to watch the chil-
dren. AR explained that, in a typical episode of abuse, she
would fall asleep with her clothes on, then wake up to dis-
cover that her pants and underwear had been removed and
that petitioner was touching her vagina. AR testified that,
in addition to touching her vagina with his penis and fin-
gers, petitioner would touch her breasts, lick her vagina, and
place her hands on his penis. AR also testified that petitioner
sexually abused her in other areas of the house, including
in the bathroom when she urinated, as well as in the living
and laundry rooms. Petitioner stopped his abuse of AR when
she was 12, after the family had moved to a different house
where AR had her own room with a door that locked.
Petitioner testified on his own behalf at trial,
where he denied having sexually abused either AB or AR.
Cite as 307 Or App 83 (2020) 87
Petitioner further testified that, contrary to the testimony of
those witnesses, the family had never shared a room, AR’s
mother had not worked nights, and he had never been inside
AB’s home.
During the state’s closing argument, the prosecutor
first recounted AB’s testimony and then separately reviewed
the evidence regarding AR, arguing to the jury that the
state had met its burden of proof as to each count. The
defense, in turn, reiterated its contention that the alleged
abuse had never occurred. Trial counsel emphasized that
neither AB nor AR had liked petitioner, and she theorized
that they both, therefore, had targeted petitioner with false
allegations. Counsel also pointed out that, in her view, many
aspects of the case were “strange,” and that the alleged
abuse of AB, in particular, was “qualitatively, for lack of a
better word, different.” Counsel argued that, given the “odd,
strange, and even fantastic” aspects of the case, there was
reasonable doubt as to petitioner’s guilt.
At the conclusion of petitioner’s trial, the jury unan-
imously voted to convict him of three counts of first-degree
sodomy and seven counts of first-degree sexual abuse, all
committed against AR and alleged to have occurred between
1994 and 1998. On a separate count of first-degree sexual
abuse, alleged to have been committed in 2001 against AB,
the jury voted 11 to 1 to convict. Finally, on a single count
charging petitioner with first-degree rape against AB in
2001, the jury voted 10 to 2 to acquit. Petitioner appealed
his convictions, and, other than reversing the trial court’s
imposition of attorney fees, we affirmed. State v. Delgado-
Juarez, 263 Or App 706, 707, 330 P3d 1248, rev den, 355 Or
880 (2014).
Petitioner subsequently petitioned for post-conviction
relief, contending that, in various ways, he had been denied
his right to adequate counsel under Article I, section 11,
of the Oregon Constitution, and effective counsel, as guar-
anteed by the Sixth and Fourteenth Amendments to the
United States Constitution. In the claim pertinent to his
second assignment of error, petitioner alleged the following:
“Because petitioner’s jury received evidence that he
raped, sodomized and sexually abused cousins AR (Counts
88 Delgado-Juarez v. Cain
3-12) and AB (Counts 1, 2) during multiple separate crimi-
nal episodes, which substantially increased the probability
of convictions on all offenses, competent counsel exercising
reasonable professional skill and judgment would request
that the court instruct the jury to consider the evidence
concerning each alleged victim separately and only as that
evidence related to a specific charge or charges relating to
that specific alleged victim.
“* * * * *
“Because the jury did not receive a limiting instruction
* * *, there is a reasonable probability that the jury convicted
petitioner on Counts 2-13 [sic] because it believed that he
had a propensity for sexually abusing minor females.”
In response, the superintendent submitted a decla-
ration in which trial counsel somewhat cryptically stated
that she had not requested the specified jury instruction
because “such a limiting instruction with respect to evidence
that was admitted without limitation would not have been
curative.” The post-conviction court denied all of petitioner’s
claims. As to petitioner’s claim that trial counsel had per-
formed deficiently in failing to request a limiting instruc-
tion, the post-conviction court ruled as follows:
“The legal basis for denial of relief is: Petitioner failed to
prove that his attorney was ineffective for failing to request
a jury instruction advising the jury that they needed to
consider the charges related [to] AB and AR separately.
Petitioner’s trial attorney explained her reasonable deci-
sion not to request such an instruction.
“In addition, there is no proof of prejudice. The jury
acquitted Petitioner of Count 1 on a 10-2 vote, convicted
him of count 2 by an 11-1 vote and convicted him of all
counts related to AR by a unanimous verdict. This would
indicate that the jury did in fact consider the counts sepa-
rately. There is no evidence that requesting and giving the
requested instruction would have had a tendency to affect
the outcome of trial.”
Petitioner now appeals, assigning error to the post-
conviction court’s denial of relief on his claim of inadequate
and ineffective assistance of counsel related to counsel’s fail-
ure to request a limiting instruction. On appeal, as in the
post-conviction court, petitioner contends that an attorney
Cite as 307 Or App 83 (2020) 89
exercising reasonable professional skill and judgment would
have asked the trial court to give the jury a limiting instruc-
tion informing them that they could not consider facts related
to one alleged victim as an indication of guilt as to the other.
Petitioner’s argument in support of that contention, which he
combines with an argument that trial counsel should have
demurred to the indictment, is not elaborate. Indeed, the
combined argument focuses almost exclusively on the demur-
rer issue. As to the limiting instruction, petitioner merely
asserts that, given counsel’s apparent defense strategy, the
instruction was necessary to advance that strategy, and that
counsel therefore performed deficiently by failing to request
it. See Ayer v. Coursey, 253 Or App 726, 738-39, 292 P3d 595
(2012) (where trial counsel’s defense theory was that victim
had been sexually abused by someone other than the defen-
dant, counsel was required to make the arguments necessary
to admit evidence that victim had been sexually abused in
the past). As to prejudice, petitioner contends that counsel’s
failure to request the instruction allowed the jury to use the
evidence in impermissible ways, such as finding that peti-
tioner had a propensity to commit sexual abuse. That, peti-
tioner argues, tended to affect the outcome of the trial.
The superintendent responds that, although the
trial court might have given a limiting instruction if coun-
sel had requested one, the circumstances did not call for
one. In the superintendent’s view, the charges involving AB
and AR were “sufficiently distinct that the jurors would not
have been confused.” Specifically, the assaults occurred sep-
arately, years apart, in different locations, and under dif-
ferent circumstances. Moreover, the superintendent points
out, petitioner’s defense was the same as to each alleged vic-
tim—he simply argued that he had not sexually assaulted
either of the alleged victims and that the state had not
proved beyond a reasonable doubt that he had. Thus, the
superintendent concludes, nothing in petitioner’s case would
have suggested to the jurors that they might consider the
evidence cross-admissible, i.e., that they might believe that
evidence as to one of the alleged victims was relevant as to
the other. The superintendent highlights the jury’s acquittal
of petitioner on one of the counts involving AB as evidence
that the jury did not regard it that way.
90 Delgado-Juarez v. Cain
Finally, in what might be characterized as an
alternative argument, the superintendent contends that a
request for a limiting instruction could have backfired. That
is, had trial counsel “requested a limiting instruction, the
state could have opposed that request by arguing that the
evidence actually was cross-admissible. And it is possible
that the trial court might have agreed * * * and thus denied
[counsel’s] motion and instructed the jurors instead that all
the evidence presented could be considered by them on each
of the charges.”2
We begin our consideration of the parties’ argu-
ments by reviewing the standards that apply to petitioner’s
post-conviction claim. “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 under
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)). At
issue in this case are petitioner’s right to adequate counsel
under Article I, section 11, of the Oregon Constitution and
the right to effective counsel under the Sixth Amendment
to the United States Constitution. Id. Although those pro-
visions are worded differently, “they embody similar objec-
tives.” Id. (internal quotation marks omitted); see also
Montez v. Czerniak, 355 Or 1, 6-7, 322 P3d 487 (2013), adh’d
to as modified on recons, 355 Or 598, 330 P3d 595 (2014)
(stating that the state and federal standards are “function-
ally equivalent”).3
To succeed on a claim of inadequate assistance of
counsel under the Oregon Constitution, petitioner must
2
Notably, although the superintendent argues that a limiting instruction
was not necessary under the circumstances and posits that the prosecutor might
have come up with some reason not to give the instruction, he does not contend
that the trial court would have declined to give one if counsel had requested it,
nor does he dispute that, in the absence of some unknown argument by the state,
defendant would have been entitled such an instruction under OEC 105 and our
case law.
3
Petitioner does not advance any argument suggesting that, even if trial
counsel’s performance was not constitutionally inadequate under the Oregon
Constitution, it fell below federal constitutional standards. Because the two stan-
dards are “functionally equivalent,” we focus our analysis on petitioner’s claim
under the Oregon Constitution. Waldorf, 301 Or App at 584 n 7.
Cite as 307 Or App 83 (2020) 91
establish, by a preponderance of the evidence, that defense
counsel failed to “exercise reasonable professional skill and
judgment and that petitioner suffered prejudice as a result
of counsel’s inadequacy.” Waldorf, 301 Or App at 575-76; see
also Sullivan v. Popoff, 274 Or App 222, 230-31, 360 P3d 625
(2015), rev den, 358 Or 833 (2016) (stating that a petitioner
has the burden of proof in a post-conviction relief case). We
evaluate the reasonableness of trial counsel’s “skill and
judgment under the circumstances existing at the time of
the challenged act or omission.” Sullivan, 274 Or App at 231(internal quotation marks omitted). In other words, we must
not second-guess trial counsel’s performance “with the ben-
efit of hindsight.” Pereida-Alba v. Coursey, 356 Or 654, 662,
342 P3d 70 (2015).
With regard to decision making, “[w]here a trial
lawyer [has] made a ‘conscious choice’ regarding a particu-
lar act or omission, we evaluate the reasonableness of that
conscious decision under the circumstances that confronted
counsel at the time of the decision.” Sullivan, 274 Or App
at 231 (citing Pereida-Alba, 356 Or at 670); see also Davis
v. Cain, 304 Or App 356, 365, 467 P3d 816 (2020) (applying
that standard in regard to defense counsel’s decision “not to
do something”). Where, on the other hand, a trial attorney
has failed to make a conscious decision as to the challenged
act or omission, we must evaluate whether that “failure to
make a conscious decision about the matter in question is
reasonable under the particular circumstances of the case,
examining, among other things, whether the strategy that
defense counsel did employ was reasonable, the relationship
between the evidence or theory that defense counsel failed
to consider and the strategy that counsel did pursue, and
the extent to which counsel should have been aware of the
strategy that petitioner now identifies.” Sullivan, 274 Or
App at 231-32 (internal quotation marks omitted).
Here, we assume that trial counsel’s failure to
request a limiting instruction was the product of a con-
scious choice. Although it shares little insight into her ratio-
nale, counsel’s declaration—stating that she did not request
a limiting instruction because it “would not have been
curative”—can be understood as saying that she considered
asking for an instruction before ultimately deciding not to.
92 Delgado-Juarez v. Cain
Furthermore, we understand that, by stating that “[p]eti-
tioner’s trial attorney explained her reasonable decision not
to request such an instruction,” the post-conviction court
implicitly found that counsel’s failure to request a limit-
ing instruction had been the product of a conscious choice.
Even though that may not be the only reasonable reading
of counsel’s declaration, it provides record support for the
post-conviction court’s finding; we, therefore, are bound by
that finding. See Ball, 250 Or at 487; Waldorf, 301 Or App
at 573. What remains for us to determine, then, is whether,
as the post-conviction court concluded, counsel’s choice was
reasonable under the circumstances. Sullivan, 274 Or App
at 232.
The Supreme Court has long recognized that
decision-making is an inherent part of competent represen-
tation, requiring defense attorneys to make sometimes dif-
ficult choices between which actions to take on behalf of cli-
ents and which ones not to take. As the court has explained
in the context of an attorney’s pretrial investigation,
“In investigating a case, a lawyer inevitably is faced with
choices as to what avenues of investigation to pursue. A
‘tactical decision’ in the course of an investigation is a con-
scious choice by a lawyer either to take or to omit some
action on the basis of an evaluation of the nature and com-
plexity of the case, the likely costs and potential benefits
of the contemplated action, and other factors. But the fact
that a lawyer has made a ‘tactical decision’ does not mean
that the lawyer’s choice meets the constitutional standard
for adequate assistance of counsel.”
Stevens v. State of Oregon, 322 Or 101, 109, 902 P2d 1137(1995). Of particular significance here, the quoted passage
makes it clear that the mere fact that an attorney has made
a conscious choice—even one qualifying as a “tactical deci-
sion”—is not itself grounds to deny post-conviction relief;
rather, the choice must result from “ ‘appropriate consider-
ation of the risks and benefits’ ” of the decision. Farmer v.
Premo, 363 Or 679, 699, 427 P3d 170 (2018) (quoting Montez,
355 Or at 27; emphasis in Farmer). And, in that regard,
“appropriate consideration” means “a reasonably accurate
and adequate consideration of the facts produced by an
investigation.” Farmer, 363 Or at 699.
Cite as 307 Or App 83 (2020) 93
Furthermore, if defense counsel’s cost-benefit analysis
is based on an erroneous or incomplete understanding of the
law, the resulting choice, much like a choice based upon a
flawed perception of the facts, is unlikely to be the product of
competent representation. See Lizarraga-Regalado v. Premo,
284 Or App 176, 186, 390 P3d 1079, rev den, 361 Or 803(2017) (explaining that “the exercise of reasonable profes-
sional skill and judgment requires criminal defense counsel
to research and analyze the law to the extent appropriate to
the nature and complexity of the case” (internal quotation
marks omitted)); see also Farmer, 363 Or at 695 (consider-
ing whether “it [is] enough for counsel to gather the requi-
site information about the facts and law and weigh them to
make a given tactical decision, or must counsel also have a
reasonably accurate understanding of the facts and law that
go into that analysis”).
Applying the foregoing standards, we conclude that
trial counsel’s decision not to request a limiting instruc-
tion reflected an absence of reasonable professional skill
and judgment. As we explain below, although counsel con-
sciously made a choice, under the circumstances, her deci-
sion reflected an erroneous or incomplete understanding of
the law and did not reflect any evaluation of the costs and
benefits of that decision; it therefore, did not follow “appro-
priate consideration of the risks and benefits” of her choice.
Farmer, 363 Or at 699 (emphasis in original). The post-
conviction court erred in concluding otherwise.
At the time of petitioner’s criminal trial, which took
place in 2012, evidence tending to prove a person’s charac-
ter and propensity to act in accordance with that character
generally was inadmissible in criminal trials, including in
child sexual abuse cases such as petitioner’s. See, e.g., State
v. Williams, 258 Or App 106, 111-12, 308 P3d 330 (2013),
rev’d, 357 Or 1, 346 P3d 455 (2015) (quoting State v. Johnson,
340 Or 319, 338, 131 P3d 173, cert den, 549 US 1079 (2006)
(for evidence to be admissible under OEC 404(3), its logical
relevance must not depend on “an inference relating to the
defendant’s character or propensities”)); see also OEC 404(3)
(evidence of a defendant’s “other crimes, wrongs or acts is
not admissible to prove the character of a person in order to
show that the person acted in conformity therewith”). As a
94 Delgado-Juarez v. Cain
result, unless the state could identify a nonpropensity-based
reason for evidence regarding one alleged victim to be con-
sidered in connection with the other, the evidence would
not—at least in 2012—have been cross-admissible. See, e.g.,
State v. Leistiko, 352 Or 172, 180, 282 P3d 857, adh’d to as
modified on recons, 352 Or 622, 292 P3d 522 (2012) (so hold-
ing under OEC 404(3)).
Furthermore, as petitioner emphasizes, OEC 105
allows parties to request limiting instructions when evi-
dence is admissible for one purpose, but not another. OEC
105 provides:
“When evidence which is admissible as to one party 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.”
(Emphasis added.) Thus, had counsel requested an appro-
priate limiting instruction, the trial court may well have
found it had no choice but to read it to the jury. See Laird
C. Kirkpatrick, Oregon Evidence § 105.03, 65 (6th ed 2013)
(“Upon receiving an appropriate request, the court is
required to give the instruction.”); see also Green, 357 Or at
319 (parenthetically describing OEC 105 as “requiring lim-
iting instruction upon request” when evidence of the sort it
describes is admitted (emphasis added)).
That alone, of course, does not compel the conclusion
that counsel performed deficiently in failing to make such
a request. Conceivably, at least, there was the possibility
that, notwithstanding the mandatory phrasing of OEC 105,
the court would not give an instruction even if requested.
Counsel appears to have believed that a limiting instruc-
tion would be ineffective and may, for that reason, also have
believed that a request for one would be viewed as untimely
by the trial court. As counsel’s declaration seems to recog-
nize, when evidence is initially admitted without limitation,
a trial court is not later required to give an otherwise appro-
priate limiting instruction. State v. Stevens, 328 Or 116,
137-38, 970 P2d 215 (1998) (stating that, under those cir-
cumstances, decision whether to give limiting instruction is
discretionary). As we have recognized in other contexts, the
Cite as 307 Or App 83 (2020) 95
failure to make even an argument whose merit is clear does
not invariably constitute inadequate assistance. It follows
that failing to make an argument whose merit is debatable
is not inadequate representation per se.
Indeed, even if the trial court would have been
required to give a limiting instruction here, the failure to
request one would not necessarily mean that counsel failed
to exercise reasonable professional skill and judgment. That
concept is reflected in cases in which we have held that a
trial court’s failure to give, sua sponte, the sort of limiting
instruction at issue here is not plain error. See, e.g., State
v. Randolph, 123 Or App 566, 571-72, 860 P2d 873 (1993),
rev den, 318 Or 382 (1994) (rejecting argument that trial
court plainly erred in failing to give a limiting instruction
regarding “other crimes” evidence, in part because “some
defense counsel do not want them, because they call the
jury’s attention to other bad acts or convictions”). As we rec-
ognized in Randolph, a trial court is not required to provide
a limiting instruction on its own motion, because, in part,
there are circumstances in which an attorney may make
the deliberate choice not to request a liming instruction.
Kirkpatrick, Oregon Evidence § 105.03 at 65.
In that regard, we acknowledge that, in addition to
defense counsel’s stated rationale, there are other plausible
reasons for an attorney exercising reasonable professional
skill and judgment to opt against requesting a limiting
instruction in a case such as petitioner’s. As the superinten-
dent points out, had counsel made that request, the state might
have responded by successfully advancing a nonpropensity-
based justification for specifically allowing the jury to
consider evidence relating to each alleged victim as rele-
vant to the charges regarding the other. See, e.g., State v.
McKay, 309 Or 305, 307-08, 787 P2d 479 (1990) (evidence
of uncharged sexual contacts between the defendant and
the victim admissible under OEC 404(3) to demonstrate the
defendant’s sexual inclination towards the victim); State v.
Ofoegbu, 242 Or App 112, 114, 255 P3d 538, rev den, 350
Or 571 (2011) (evidence that the defendant had previously
committed a sex offense against another victim admissible
to show the defendant’s intent or sexual purpose); State v.
Momeni, 234 Or App 193, 202, 227 P3d 1230, rev den, 348 Or
96 Delgado-Juarez v. Cain
523 (2010) (evidence of the defendant’s prior sexual miscon-
duct with another victim is admissible under OEC 404(3) in a
sexual abuse trial to demonstrate the defendant’s pattern of
conduct in manipulating his landlord-tenant relationship to
make his victims vulnerable to his sexual advances). Thus,
diligent counsel may well have been unwilling to risk hav-
ing the court specifically instruct the jury that they could
consider the evidence as to each alleged victim mutually rel-
evant, even if for a reason other than petitioner’s character.
Ultimately, however, the fact that another attor-
ney might, on other reasonable basis, have made the same
decision that counsel made in this case does not control
the assessment of counsel’s performance. The difficultly we
have with considering those other potential reasons for trial
counsel’s decision, as the superintendent would have us do,
is that nothing in the record indicates that counsel herself
considered them. As noted, the post-conviction court con-
cluded that counsel had “explained her reasonable decision
not to request such an instruction.” However, trial counsel’s
entire “explanation” for that decision is a single sentence
in her declaration stating that “such a limiting instruction
with respect to evidence that was admitted without limita-
tion would not have been curative.” At most, counsel’s state-
ment suggests that, at some point during petitioner’s trial,
she thought about requesting a limiting instruction, but
decided against making that request because, in her assess-
ment, it was by that time strategically or legally too late.
Counsel’s succinct explanation limits our inquiry.
Even if, upon reflection, we or the superintendent can iden-
tify a number of alternative considerations that, on balance,
might have justified trial counsel’s decision, we may not
engage in post hoc rationalization in a manner that does
not reflect “ ‘counsel’s actual strategic reasoning.’ ” Farmer,
363 Or at 698 (quoting Montez, 355 Or at 27 (“We agree, of
course, that courts may not indulge in post hoc rationaliza-
tions of trial counsel’s decisions that contradict the evidence
derived from their actions.”)). That is, although it is per-
missible to discuss other considerations counsel might have
had in mind “when the record supports a conclusion that an
attorney made a choice after correctly considering the costs
and benefits of that decision,” we may not “simply disregard”
Cite as 307 Or App 83 (2020) 97
the fact that a decision was “based in part on inaccurate or
inadequate information” just because there was “other accu-
rate information that the attorney considered or may have
considered.” Id. at 699 (emphases added).
Here, the only evidence of counsel’s reasoning is the
statement in her declaration. The superintendent points to
no other evidence in the trial or post-conviction court records
suggesting any rationale for counsel’s decision other than
her belief that a limiting instruction would be ineffective.
In other words, counsel apparently believed there would be
little or no benefit to having an instruction, so she did not
ask for one. There is no indication that counsel believed that
asking for a limiting instruction carried a risk of backfiring
or otherwise harming her defense of petitioner, nor is there
evidence of any other cost that counsel weighed against
the minimal benefit that she thought an instruction would
provide.
Furthermore, the rationale that counsel relied on
did not reflect a reasonably accurate understanding of the
applicable law; as a result, counsel did not choose to forgo
requesting a limiting instruction only after “appropriate
consideration of the risks and benefits” of that decision.
Farmer, 363 Or at 699. For one thing, counsel evidently
believed that a limiting instruction would be ineffective
if given sometime after the underlying evidence had been
introduced without limitation. See, e.g., Stevens, 328 Or 138(“Timeliness, in this context, as in almost any context in
which the admissibility of evidence is at issue, means at or
before the time that the evidence is offered to the jury. At
the very least, it must occur at a time when the trial court
is able to take appropriate action to mend the harm.”). But,
whether or not counsel’s understanding was correct in that
regard, her rationale reflects the mistaken belief that she
could not have requested a limiting instruction at the time
that the evidence was received, so as to immediately limit
the manner in which the jury considered it. See id.For another thing, the mere fact that petitioner’s
trial attorney may have had a reasonable basis for her deci-
sion does not satisfy the requirement, under cases such as
Farmer, that tactical decisions follow a cost-benefit analysis.
98 Delgado-Juarez v. Cain
363 Or at 699. That is, notwithstanding the existence of
plausible reasons to forgo requesting an instruction whose
merits were debatable (or at least subject to the trial court’s
discretion), nothing in the record reflects any consideration
of the risks attendant to requesting a jury instruction. And,
in our view, to posit that counsel may have had those risks
in mind despite there being no suggestion of them in her
explanatory declaration or anywhere else would constitute
impermissible post hoc rationalization. See id. at 698. Thus,
on this record, we conclude that the post-conviction court
erred in concluding that trial counsel made a reasonable
tactical decision when she opted not to request an appropri-
ate limiting instruction.
Having concluded that defense counsel performed
deficiently in failing to request a limiting instruction, we
turn to whether petitioner suffered prejudice as a result.
Prejudice occurs when trial counsel’s inadequate perfor-
mance “could have tended to affect” the outcome of the case.
Green, 357 Or at 323 (internal quotation marks and empha-
sis omitted). “[T]he tendency to affect the outcome standard
demands more than a mere possibility, but less than a prob-
ability.” Id. at 322. Applying that standard, we conclude that
petitioner was prejudiced by counsel’s omission. In resisting
that conclusion, the superintendent argues that no limit-
ing instruction was necessary under the circumstances of
this case.4 As noted, the superintendent observes that the
charges involving each alleged victim were distinct, in that
the sexual assaults occurred at different times, in different
locations, and under different circumstances. Moreover, the
prosecutor never argued that the jury could or should rely
on the evidence relating to one of the alleged victims as evi-
dence that petitioner had also sexually assaulted the other.
Finally, neither of the alleged victims was a witness with
respect to the assault on the other.
As petitioner suggests, however, without a specific
limiting instruction, nothing in the instructions that the
jurors actually received would have prevented them from
4
In the briefing, the superintendent directs some of these arguments more
to the merits than to the issue of prejudice. However, we view them as more ger-
mane to the prejudice inquiry and so consider them here.
Cite as 307 Or App 83 (2020) 99
considering petitioner’s alleged abuse of multiple victims
as evidence of a propensity to sexually assault young girls.
Cf. State v. Miller, 327 Or 622, 632, 969 P2d 1006 (1998)
(acknowledging that “other crimes evidence” offered in the
course of a joint trial may indirectly effect a violation of the
prohibition against propensity evidence). We recognize that
we and the Supreme Court have repeatedly held that the
joinder of charges involving multiple victims does not, in the
absence of other circumstances, prejudice a defendant within
the meaning of the joinder statute, ORS 132.560. E.g., Miller,
327 Or at 629 (rejecting defendant’s “categorical approach” for
cases involving violence or sexual assault); State v. Dimmick,
248 Or App 167, 178, 273 P3d 212 (2012) (“The mere asser-
tion that evidence relating to some charges will influence the
jury’s consideration of other charges is insufficient.”). As we
will explain, however, that joinder case law informs, but does
not control, the prejudice analysis applicable to petitioner’s
inadequate-assistance-of-counsel claim.
Green is particularly instructive. In that case, which
is similar to petitioner’s in many regards, the Supreme Court
discussed the intersection of its case law regarding joinder,
other acts evidence, and reliance on limiting instructions.
Green, 357 Or at 315-17. The court first noted that, under its
decision in Miller, a court considering issues of joinder and
severance under ORS 132.560(3) “must focus on ‘any cir-
cumstance’ that impairs a defendant’s right to a fair trial.”
Id. at 316 (quoting Miller, 327 Or at 633). The Supreme Court
then explained that, among the relevant circumstances,
“the probable effectiveness of limiting instructions given to
the jury by the court” was “[o]f particular relevance.” Green,
357 Or at 316 (internal quotation marks omitted). Quoting
Leistiko, the court then elaborated,
“[w]hen a trial court declines to sever joined offenses, and
evidence relating to one offense is not admissible to prove
another joined offense, a trial court ordinarily will instruct
the jury to consider the evidence on each offense sepa-
rately to prevent the jury from using the evidence offered
to prove one offense to decide another joined offense.
“Leistiko, 352 Or at 178 (‘recognizing the risk that a jury
may use evidence admitted to prove one count in deciding
whether the state has proved a joined count’).”
100 Delgado-Juarez v. Cain
Id. at 316-17. Significantly, notwithstanding its rejection
in Miller of a categorical approach to prejudice under ORS
132.560(3), the court in Green expressly acknowledged both
the potential spillover effect when charges involving multi-
ple victims are joined for trial and the role that appropriate
limiting instructions can play in mitigating that prejudice.
Id.
Given that the Supreme Court has repeatedly rec-
ognized “the risk that a jury may use evidence admitted to
prove one count in deciding whether the state has proved a
joined count,” Green, 357 Or at 317 (so characterizing the
court’s reasoning in Leistiko), we conclude that trial coun-
sel’s failure to mitigate that risk through a limiting instruc-
tion prejudiced petitioner for purposes of his post-conviction
claim. In reaching that conclusion, we are not suggesting
that a defendant is prejudiced within the meaning of ORS
132.560(3) anytime that charges involving multiple vic-
tims of violence or sexual assault are joined and a limiting
instruction is not given. See Miller 327 Or at 629 (reject-
ing that categorical approach); see also ORS 132.560(3)
(remedies for prejudice may include ordering an election or
separate trials or “whatever other relief justice requires”).
Rather, we are recognizing that, collectively, the Supreme
Court’s decisions in Miller and Green establish that “preju-
dice” for purposes of the joinder statute and “prejudice” for
purposes of post-conviction relief are not the same thing.5
In Miller, the court construed the statutory term
“prejudice” appearing in ORS 132.560(3). 327 Or at 627-28.
The court concluded: “The actual or likely impairment of [a
party’s interest in a fair trial], resulting from the joinder
of multiple offenses in a single charging instrument, con-
stitutes ‘prejudice’ within the meaning of ORS 132.560(3).”
Id. at 628 (emphasis added). In that same decision, however,
the court acknowledged that, although a particular joinder
decision may not prejudice a defendant for purposes of ORS
132.560(3), it may well have consequences implicating other
5
Following the Supreme Court’s decision in Miller, the legislature amended
ORS 132.560(3) to require a showing of “substantial” prejudice rather than
merely “prejudice.” Or Laws 1999, ch 1040, § 17. That change in the law has no
bearing on our analysis.
Cite as 307 Or App 83 (2020) 101
considerations, including whether the admission of evidence
related to only some of a defendant’s charges would unduly
prejudice the defendant as to other charges. Id. at 633-34
(addressing defendant’s OEC 403 argument). As in other
cases, the Supreme Court in Miller acknowledged the risk
that jurors would misuse that evidence:
“To be sure, there was at least some degree of danger that
admitting evidence of defendant’s multiple offenses in a
joint trial would tempt the jury to decide the case on the
basis of defendant’s perceived propensity to commit crimes.
However, the evidence was also probative of defendant’s
guilt of the charged offenses to which the evidence related.”
Id. at 634 (footnote omitted). Thus, the court concluded that
the admission of “other crimes evidence” to prove some but
not all of the charges in a case did not prejudice the defen-
dant within the meaning of ORS 132.560(3); it recognized,
however, that the proper joinder of charges under the statute
might nonetheless result in other forms of prejudice requir-
ing other corrective action by the court.6
Like Miller, the Supreme Court’s decision in Green
involved a joint trial; however, as in this case, the court’s
focus in Green was on whether the petitioner’s trial coun-
sel had provided inadequate assistance in failing to request
a limiting instruction of the sort at issue here. See Green,
357 Or at 303. Unfortunately, the court ultimately left that
issue unresolved. Rather than address the inadequate-
performance issue—a matter that the post-conviction court
itself had left undecided—the Supreme Court addressed
whether the post-conviction court had applied the wrong
prejudice standard “when it concluded that, if counsel had
requested a limiting instruction, the result ‘would’ not have
been different.” Id. at 321. The court concluded that the
post-conviction court had applied the incorrect standard. Id.Describing the post-conviction court’s approach as
a “probability-based formulation,” the Supreme Court held
6
As to the specific question under OEC 403 in Miller, the court held that
the issue was a matter of discretion that the “trial court could have decided * * *
either way.” 327 Or at 634. Accordingly, the court had not abused its discretion in
permitting the state to introduce evidence of the defendant’s multiple offenses in
a joint trial. Id.102 Delgado-Juarez v. Cain
that the correct prejudice inquiry was “whether trial coun-
sel’s acts or omissions could have tended to affect the out-
come of the case.” Id. at 321-23 (internal quotation marks
omitted; emphasis in Green). In rejecting a probability-
based prejudice analysis, Green necessarily distinguished
the assessment of prejudice in post-conviction cases from
that applicable under the joinder statute, ORS 132.560(3).
As explained above, Miller defined prejudice in that con-
text solely in probability-based terms. See Miller, 327 Or at
627 (describing prejudice standard as authorizing protec-
tive action when a party “likely will suffer” harm or injury
due to joinder); id. at 628 (“prejudice” is the “actual or likely
impairment” of a party’s interest in a fair trial); id. at 629(rejecting defendant’s challenge under ORS 132.560(3)
because he had not shown that “the joinder of offenses [was]
likely to cause prejudice”).
Reading Miller and Green together, it is appar-
ent that the joinder of charges involving multiple alleged
victims—and a corresponding failure to request a limiting
instruction confining the jury’s consideration of the evidence
to the charges to which it relates—can result in prejudice
for purposes of post-conviction relief even if the charges
were properly joined under ORS 132.560(3), that is, even
if there was no prejudice within the meaning of the join-
der statute. In other words, if counsel’s omission could have
tended to affect the outcome of the case, then petitioner has
established that he was prejudiced by counsel’s inadequate
performance, even if such a result was less than likely. See
Green, 357 Or at 322 (explaining that, “because many differ-
ent factors can affect the outcome of a jury trial, in that set-
ting, the tendency to affect the outcome standard demands
more than mere possibility, but less than probability”).
Here, we conclude that there was more than a
mere possibility that counsel’s failure to request a limiting
instruction affected the outcome of his trial. As discussed
above, the Supreme Court has repeatedly recognized the
potential for jurors to misuse evidence in joint trials and
the value that a limiting instruction can have in avoiding
that misuse. Indeed, in arguing against an expansive con-
struction of “prejudice” in Miller, the state reasoned that
“defendants in many criminal cases will suffer at least some
Cite as 307 Or App 83 (2020) 103
degree of prejudice from joinder of offenses, and a slight
degree of prejudice should not justify severance.” 327 Or at
628; see also Leistiko, 352 Or at 178 (discussing Miller and
that opinion’s recognition of the risk that jurors will use evi-
dence for propensity purposes).
Applying that standard, we conclude that there was
more than a mere possibility that jurors would consider the
fact that petitioner was alleged to have sexually assaulted
multiple child victims as propensity evidence and would
factor that propensity into their verdicts. That use of the
evidence would have weighed heavily in favor of the prose-
cution, even in the absence of an express argument that the
jury should use it that way. See, e.g., State v. Pinnell, 311 Or
98, 105-06, 806 P2d 110 (1991) (observing that the historical
rationale for excluding evidence of propensity to engage in
certain crimes is not that such evidence is not relevant or
probative, but that it creates a risk of unfair prejudice to
the accused). An appropriate limiting instruction, if prop-
erly requested and given to the jury, would have directly
addressed that potential for prejudice. See, e.g., State v.
Bement, 363 Or 760, 768-69, 429 P3d 715 (2018) (stating
that “a court may address that risk of misuse through a
limiting instruction to the jury”); State v. Voits, 186 Or App
643, 660, 64 P3d 1156, rev den, 336 Or 17 (2003) (“A limit-
ing instructing often is an appropriate means to safeguard
against jury misuse of evidence that is admissible to show
[one thing] but is inadmissible for other purposes.”). In light
of the significant possibility that, in the absence of a limiting
instruction, the jurors would use the evidence in that highly
persuasive manner, we cannot say that counsel’s omission
had little tendency to affect the verdicts in petitioner’s
case.
Reversed and remanded as to claim regarding trial
counsel’s failure to request a limiting instruction; otherwise
affirmed.
DeVORE, J., concurring in part; dissenting in
part.
I join the majority on petitioner’s assignments
of error that are rejected without discussion, but I write
104 Delgado-Juarez v. Cain
separately to address the majority’s two-part conclusion
on the second assignment of error. In the earlier, criminal
case, trial counsel failed to request a permissible, limiting
instruction to advise the jury that its consideration of the
evidence of the charges involving one child victim should
not be considered to relate to the charges involving another
child victim. The majority concludes, first, that counsel’s
failure was an unreasonable exercise of professional skill
and judgment and, second, that the failure may have caused
prejudice. I have qualms about the first conclusion, given
our legal standards, the trial court’s ruling to the contrary,
and a record that supports the trial court. As for the second
conclusion, I believe that we cannot invoke a presumption
of prejudice, and, if not, then petitioner has failed to carry
his burden of proof on prejudice. We should affirm the post-
conviction court’s judgment.
In general, we agree on the legal standards. When
evaluating whether a criminal defense lawyer has ren-
dered inadequate assistance that warrants post-conviction
relief, we consider two sub-issues. Green v. Franke, 357
Or 301, 312, 350 P3d 188 (2015). We must determine first
whether petitioner demonstrated by a preponderance of the
evidence that his trial counsel failed to exercise reason-
able professional skill and judgment. Id. And, second, we
must determine whether petitioner has carried his burden
to show that counsel’s failure was prejudicial, i.e., it had a
tendency to affect the result of the trial. Id. at 312, 321 (cit-
ing Krummacher v. Gierloff, 290 Or 867, 883, 627 P2d 458(1981)). The second sub-issue does not turn on a “probabil-
ity” standard. Green, 357 Or at 322. Nor does it turn on a
presumption of prejudice. The Oregon Supreme Court has
explained:
“[B]ecause many different factors can affect the outcome
of a jury trial, in that setting, the tendency to affect the
outcome standard demands more than mere possibility, but
less than probability.”
Id. at 322. If the post-conviction court makes findings of fact,
then they are binding on us if there is evidence in the record
to support them. Id. at 312. If the post-conviction court failed
to make findings on all issues—and there is conflicting
Cite as 307 Or App 83 (2020) 105
evidence—we presume that the facts were decided consis-
tently with the conclusions of the post-conviction court. Id.On the issue of counsel’s deficient performance, I
am less than confident that the majority opinion reaches the
correct conclusion. Trial counsel explained that she decided
not to request a limiting instruction because it “would not
have been curative.” The majority opinion concludes that
trial counsel’s decision “reflected an erroneous or incomplete
understanding of the law and did not reflect any evaluation
of the costs and benefits of that decision[.]” 307 Or App at 93.
It is not entirely clear what error of law or fact the major-
ity determines trial counsel made. Perhaps the point of law
is found where the majority opinion suggests that OEC 105
applies so as to require a limiting instruction. Perhaps the
perceived error has something to do with understanding
that a limiting instruction was discretionary after evidence
was admitted without qualification. Nonetheless, the major-
ity opinion goes on to posit several “other plausible reasons
for an attorney exercising reasonable professional skill and
judgment to opt against requesting a limiting instruction
in a case such as petitioner’s.” 307 Or App at 95. However,
the majority opinion constrains its view, stating, “Counsel’s
succinct explanation limits our inquiry.” Id. at 96.
I am not so sure. It is true that our inquiry into trial
counsel’s explanation is limited when and if trial counsel’s
explanation reveals an error of law or misunderstanding of
fact. However, our inquiry is not so limited when, without
such error, further explanation can be found in the circum-
stances and is consistent with trial counsel’s statement.
Referring to that distinction between a limited review and
a review of the whole record, the Oregon Supreme Court
recalled an earlier precedent and summarized:
“Montez stands for the proposition that, when the record
supports a conclusion that an attorney made a choice
after correctly considering the costs and benefits of that
decision, it is not error for a reviewing court to discuss
other considerations that counsel also could have consid-
ered in deciding whether counsel’s representation was
constitutionally adequate. However, Montez does not sug-
gest that, when an attorney’s decision is based in part on
106 Delgado-Juarez v. Cain
inaccurate or inadequate information, a court can simply
disregard that deficiency and focus only on other accu-
rate information that the attorney considered or may have
considered.”
Farmer v. Premo, 363 Or 679, 699, 427 P3d 170 (2018) (dis-
cussing Montez v. Czerniak, 355 Or 1, 27, 322 P3d 487 (2014).
It is also true that a limiting instruction is
permissible—indeed, beneficial—when there are multiple
charges of many sorts, whether one victim or more. State v.
Moore/Coen, 349 Or 371, 391, 245 P3d 101 (2010), cert den,
563 US 996 (2011). However, contrary to the suggestion of
the majority opinion, OEC 105 does not require a limiting
instruction in those circumstances. That rule provides:
“When 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.”
OEC 105 (emphasis added). The circumstances here did not
involve evidence “admissible as to one party” but not “as to
another party.” The evidence of the charges was all admissi-
ble as to one party—petitioner—even if the evidence involved
two victims or witnesses. There was no other defendant on
trial with petitioner, so OEC 105 did not apply. Consequently,
trial counsel did not overlook a limiting instruction that was
required by OEC 105.
The next suggestion of the majority opinion should
be no more convincing. Even if a limiting instruction
remained a discretionary possibility after evidence was
admitted without qualification, trial counsel did not say
that the law precluded a request for a limiting instruction;
she did not say that a limiting instruction would not have
been permissible. She only indicated her assessment that a
limiting instruction would not have been curative. Therefore,
trial counsel’s explanation was not premised on an error of
law.
Further, nothing in the circumstances of the case
indicates that trial counsel made a mistake of fact in
Cite as 307 Or App 83 (2020) 107
understanding the evidence. See Farmer, 363 Or at 699-700(trial counsel made mistake of fact by misunderstanding of
prospective expert witness’s testimony). And, nothing in the
majority opinion indicates that counsel made a mistake of
fact. Therefore, absent a mistake of law or fact, our inquiry
in this case is not limited to counsel’s “succinct explanation”
as the majority opinion would suppose.
If trial counsel made no error of fact or law, then
our standard of review should compel acceptance of the
conclusion of the post-conviction court—no inadequate
performance—because the majority opinion does posit
“other plausible reasons” for deciding against requesting
a limiting instruction and those explanations support the
post-conviction court’s conclusion. See Green, 357 Or at 312(construing evidence to support trial court conclusion); Ball
v. Gladden, 250 Or 485, 487, 443 P2d 621 (1968) (presuming
that the facts were decided in a manner consistent with the
trial court conclusion). Those plausible reasons could suffice
to conclude discussion at this point.
Even so, I suggest another plausible reason: Trial
counsel could have assessed a limiting instruction as not
curative due to the unavoidable problem of a case with two
victims, the nature of the distinct charges involving those
victims, and the jury instructions intended to be given.
Those three things give meaning to trial counsel’s “succinct
explanation.”
First, petitioner was charged with sex offenses
involving two child victims. They were charges joined pur-
suant to ORS 132.560(1)(b)(A).1 Trial counsel did not move
to sever the trial of the case as between the two victims.
In the post-conviction trial, petitioner’s counsel conceded
1
In relevant part, ORS 132.560 provides:
“A charging instrument must charge but one offense, and in one form
only, except that:
“* * * * *
“(b) Two or more offenses may be charged in the same charging instru-
ment in a separate count for each offense if the offenses charged are alleged
to have been committed by the same person or persons and are:
“* * * * *
“(A) Of the same or similar character [.]”
108 Delgado-Juarez v. Cain
that the charges were properly joined.2 As a consequence,
petitioner’s case did not involve prior uncharged offenses; it
was unlike cases in which the evidence of prior “bad acts”
or offenses might be challenged or might be admitted for
limited purposes.3 Rather, the evidence as to each child
victim was directly admissible for the separate offenses
charged. Trial counsel could correctly conclude that no lim-
iting instruction could be truly curative in the ideal sense of
preventing the same jury from hearing evidence as to one
victim and not evidence as to another victim. If there is a
potential ill-effect, then it is the ill-effect of simply being
charged with multiple offenses, regardless whether there is
only one victim or there are more victims of charges “[o]f the
same or similar character.” See ORS 132.560(1)(b)(A) (join-
der of charges). Even then, it is not such an ill-effect that
joinder of charges was not permitted. On facts like these,
the risk of prejudice is not sufficient to preclude joinder of
such charges. See, e.g., State v. Miller, 327 Or 622, 969 P2d
1006 (1998) (affirming denial of motion for separate trials
involving sexual offenses with unrelated victims).
Second, trial counsel could also plausibly, even rea-
sonably, conclude that there was little risk of confusion of
issues. As the post-conviction court observed, the offenses
involving the two victims were distinctly separated in time
and place. The offenses involving AB were charged to have
occurred in 2001. The offenses involving AR were charged
to have occurred from 1994 to 1998. They were not interre-
lated events. The witnesses did not overlap so as to concern
the same charge. The charges in the charging instrument
and in the jury instructions were separately specified.
Third, trial counsel could plausibly, even reason-
ably, conclude that the risk of bias was already minimized.
2
Instead, on appeal here, petitioner has argued that trial counsel should
have demurred to the charging instrument as containing charges not properly
joined. That first assignment of error we have rejected without discussion. See
ORS 132.560(1)(b)(A); see also State v. Miller, 327 Or 622, 969 P2d 1006 (1998)
(affirming denial of motion to sever).
3
See, e.g., State v. Baughman, 361 Or 386, 393 P3d 1132 (2017) (evaluation
of admission of evidence of prior uncharged sex offenses involving two victims);
see also State v. Turnidge, 359 Or 364, 440-42, 374 P3d 853 (2016) (prior bad acts
admissible).
Cite as 307 Or App 83 (2020) 109
She could consider that jurors are expected to follow jury
instructions. See Purdy v. Deere and Company, 355 Or 204,
227-28, 324 P3d 455 (2014) (quoting Wallach v. Allstate Ins.
Co., 344 Or 314, 329, 180 P3d 19 (2008) (“ ‘[w]e presume that
a jury follows a trial court’s instructions.’ ”). With requested
and given instructions, trial counsel could know that the
jury would be advised by the court:
“It is your duty to weigh the evidence calmly and dispas-
sionately and to decide this case on its merits. Do not allow
bias, sympathy, or prejudice any place in your delibera-
tions. Do not decide this case on guesswork, conjecture, or
speculation.”
(Emphasis added.) Although not directly addressed to the
charges within the case itself, trial counsel had requested
and knew that the court would give a parallel instruction
telling the jury not to draw any inferences from any prior
crimes. That instruction told the jury:
“If you find that the defendant has been previously con-
victed of a crime, you may consider this conviction only for
its bearing, if any, on the believability of the defendant’s
testimony.
“Specifically, you may not use this evidence for the pur-
pose of drawing the inference that, because the defendant
was convicted of a previous crime the defendant may be
guilty of the crime or crimes charged in this case.”
(Emphasis added.) When following those instructions, the
jury was directed to determine the elements of each of the
charged offenses with specific reference to which victim,
which acts, and at which time. Putting the instructions
together, the jury should already know to shun consider-
ation of evidence as to one victim when considering the evi-
dence as to another victim.
Given those circumstances, trial counsel knew that
multiple charges could not be remedied; that the implicit
harm, if any, with charges involving two victims was
inherent with multiple charges of any sort; and that such
unavoidable harm was already addressed by instructions
about the presumption of innocence, avoiding bias and prej-
udice, requiring proof beyond a reasonable doubt, focusing
on the elements of each offense, and, closely related, avoiding
110 Delgado-Juarez v. Cain
drawing negative inferences from earlier offenses. If jurors
are trusted to follow instructions, then that is a reasonable
view. Because that is one reasonable view of the record, it
supports the trial court’s conclusion that trial counsel was
not inadequate when choosing not to seek a limiting instruc-
tion. A limiting instruction would not have been curative,
because the harm of multiple charges could not be cured by
severance, was minimized by distinctly severable charges,
and was already addressed in the given jury instructions.4
On the issue of prejudice, the law requires that peti-
tioner bear a burden of proving more than a possibility of
prejudice, although he need not prove a probability of prej-
udice. Green, 357 Or at 322. As a corollary, that standard
should mean that a court cannot import into the analysis a
presumption of prejudice. Yet, I fear, that is what the major-
ity opinion does. The majority opinion adopts the petition-
er’s argument that, “without a specific limiting instruction,
nothing in the instructions that the jurors actually received
would have prevented them from considering petitioner’s
alleged abuse of multiple victims as evidence of a propensity
to sexually assault young girls.” 307 Or App at 98-99.
To reach that conclusion, the majority opinion
infers from a pair of appellate cases the idea that joinder
of offenses carries an inherent risk of prejudice, presump-
tively necessitating the instruction. The majority opinion is
careful to say that that is not necessarily true in every case.
Nevertheless, the majority opinion still operates, in effect,
as if the presumption of prejudice is the default mode. As a
consequence, the majority opinion makes it the state’s job
to prove the absence of prejudice. In effect, petitioner’s bur-
den of proving prejudice has been reversed. Compare id. at
100 (not suggesting a defendant is prejudiced anytime mul-
tiple charges are joined), with id. at 102 (reading Miller and
Green together, it is apparent that the joinder of charges
and failure to request a limiting instruction can result in
4
To conclude otherwise, as does the majority opinion, would seem to make
the absence of a limiting instruction reversible error in every criminal case
and every post-conviction case with multiple charges. That is because this case
does not turn on unusual or rare facts. This case involves common and simple
facts. Thus, there is nothing to isolate the majority’s opinion to an unusual cir-
cumstance. There is nothing to prevent this case from serving as a universal
precedent.
Cite as 307 Or App 83 (2020) 111
prejudice), and id. at 102-03 (the Supreme Court has repeat-
edly recognized the potential for jurors to misuse evidence
in joint trials).5 The majority opinion does not point to the
record of the case to show how petitioner carried his burden
of proving something “more than a possibility of prejudice.”
Green, 357 Or at 322 (emphasis added). Instead, the majority
opinion makes the same assumption we would, in a different
setting, when reversing a case where evidence of “prior bad
acts” has no proper purpose in the case, leaving a jury to
regard evidence of other acts as related to the charged acts.
See, e.g., State v. Pitt, 352 Or 566, 293 P3d 1002 (2012) (the
trial court erred when it admitted prior bad acts evidence
regarding defendant’s uncharged sexual contacts). The
majority opinion generalizes from that fear borne of a sim-
ilar factual setting but significantly different trial setting.
The majority opinion assumes that a jury will naturally do
wrong. In my view, that is a pessimistic and unwarranted
presumption of prejudice. A presumption of prejudice is not
implied in either case on which the majority opinion relies.
The first case, with some similar facts, stands for
other principles. In Green, the petitioner was charged with
multiple sex offenses against nine victims. 357 Or at 303.
His trial counsel failed to move to sever the charges and
failed to request a limiting instruction. Id. at 304-05. The
jury convicted on all charges. Id. at 307. In the ensuing post-
conviction case, petitioner’s trial counsel did not indicate
explicitly whether he had evaluated whether to give a lim-
iting instruction.6 Id. Instead, he complained, “I don’t know
what [post-conviction] counsel is saying.” Id. at 307-08. The
post-conviction court did not decide whether trial coun-
sel had provided constitutionally deficient performance;7
instead, the court decided that the petitioner had failed to
prove that the absence of the instruction would have caused
prejudice. Id. at 321.
5
Similarly, when offering to “prove” prejudice, petitioner cited State v. Pitt,
352 Or 566, 582, 293 P3d 1002 (2012), but Pitt is a case about prior bad acts, not
about a limiting instruction.
6
In our case, we understand that trial counsel did consider whether to
request a limiting instruction.
7
In our case, the post-conviction court determined that trial counsel’s per-
formance was not an unreasonable exercise of professional skill and judgment.
112 Delgado-Juarez v. Cain
On appeal, we mistakenly decided that the failure
to have requested a limiting instruction meant deficient per-
formance just because there was “no downside” to requesting
the instruction. Id. at 311. We decided that petitioner proved
that the deficiency could have caused prejudice because, in
the absence of an instruction, the jury “may well have” made
improper inferences about petitioner’s propensity to commit
sex offenses. Green v. Franke, 261 Or App 49, 63, 323 P3d
321 (2014), rev’d, 357 Or 301, 350 P3d 188 (2015). On review,
the Supreme Court rejected our “no downside” approach as
incomplete when considering the reasonableness of counsel’s
performance for failing to request an instruction. Green, 357
Or at 319-20.
Also, the Supreme Court rejected the trial court’s
standard of prejudice—i.e., that counsel’s inadequacy
would have affected the result. The Supreme Court held, as
recounted above, that the standard of proof requires more
than a possibility of prejudice although not as much as a
probability of prejudice. Id. at 322-23. The Supreme Court
remanded the case to the post-conviction court because
that court had neither decided the deficiency of counsel nor
employed the proper standard of proof of prejudice. Id. at
321, 323.
In saying all that, the Green court did not indicate
that there is a presumption of prejudice to be substituted for
a petitioner’s burden of proving prejudice. To be sure, the
court did review ORS 132.560(3) and note that, if, by join-
der, a defendant is “substantially prejudiced,” then a trial
court may require separate trials or provide whatever other
relief justice requires. Id. at 316. The court also observed
that trial courts have the authority to give limiting instruc-
tions to require juries to consider evidence only for a par-
ticular purpose or in regard to a particular element. Id.That observation flows naturally from the provision in ORS
132.560(3) that a trial court may provide whatever relief
justice requires. That observation did not indicate that
a limiting instruction is required, nor necessary in every
case. Indeed, the Green court remanded in order that the
post-conviction court could examine whether trial coun-
sel’s failure to request a limiting instruction meant counsel
performed unreasonably in light of all the circumstances
Cite as 307 Or App 83 (2020) 113
of the trial, including the petitioner’s defense strategy.
See id. at 320 (listing issues unaddressed below). In other
words, the Green decision did not declare joined charges
invariably prejudicial without a limiting instruction, and
it certainly did not create a presumption of prejudice to be
invoked in the absence of a limiting instruction.
The second case, Miller, is more helpful, although
different. It is not a post-conviction case; it was decided on
direct appeal of convictions on sex offenses involving two
victims. 327 Or at 624. It did not involve a limiting instruc-
tion; it involved a trial court’s denial of a motion to sever the
trial of joined charges. Id. It addressed prejudice in the con-
text of severance, not in the context of post-conviction relief.
Even so, Miller is instructive for what it says about prejudice
involving joined charges and what it says about evaluating
every case individually on its own facts rather than categor-
ically with presumed prejudice.
At the time of the events in Miller, the joinder stat-
ute was essentially the same as today’s statute but for one
significant difference. At that time, ORS 132.560(3) (1991)
did not require a party to be “substantially” prejudiced as
the standard for granting separate trials or other relief.
The legislature inserted the word “substantially” after the
Miller decision. See Or Laws 1999, ch 1040, § 17. In its time,
the Miller court considered prejudice in an everyday sense
when it evaluated the defendant’s argument that “prejudice
is inherent in the presentation to a single jury of multiple
unrelated charges involving violence or sexual assault.” 327
Or at 625. The court examined what the legislature meant
by the term “prejudiced,” observing that the “term ‘preju-
dice’ is a familiar legal standard[,]” and adding that “[i]t
appears in a number of statutes and rules.” Id. at 627. In
saying so, the court was not speaking narrowly of prejudice
as assessed under just the joinder statute; rather, the court
was speaking of prejudice in the same sense as we speak of
prejudice at risk in the absence of a limiting instruction.
The state insisted that the court should demand
more than just plain prejudice from the joinder of charges
in order to warrant separate trials or to find error when
trial court refuses to sever. Id. at 628. The Supreme Court,
114 Delgado-Juarez v. Cain
however, refused to imply the word “substantial” into a
statute that, at the time, the legislature had not used. Id.Everyday prejudice was the standard in Miller. For that rea-
son, the court’s discussion of prejudice from joined charges
is helpful here.
The defendant had argued, among other things,
that “real prejudice” results when “the accusatory instru-
ment charges multiple unrelated offenses involving violence
or sexual assault” and when “the court would not other-
wise admit evidence of each offense under OEC 404(2) or (3)
* * * in separate trials.” Id. at 629. The Supreme Court
responded:
“We disagree with defendant’s categorical approach to
the question of prejudice under ORS 132.560(3). Courts
apply few legal standards that are more case specific than
the standard of prejudice. The statute contemplates that
the court will engage in each case in a practical analysis of
the prejudice entailed in joinder of multiple offenses for a
single trial and will not conclude automatically that prej-
udice exists in every case that involves allegations of sex-
ual misconduct, violence, or multiple victims. Allegations
of that sort, considered in combination with other circum-
stances described in the motion, may justify the conclusion
that prejudice exists in a particular case. But, in our view,
that conclusion must flow from a case-by-case assessment
rather than the ‘one size fits all’ approach that defendant
advocates.”
Id. From this, we should recognize that the Supreme Court
does not countenance a categorical approach to prejudice,
and it does not countenance a presumption of prejudice from
the joinder of charges against separate victims in a single
trial. That is because the determination of prejudice is “case
specific” involving a “practical analysis.” Id.The defendant had argued, in part, that the joined
charges caused a prejudicial effect that outweighed any
probative value, contrary to OEC 403.8 Id. at 629-30. The
8
OEC 403 provides:
“Although relevant, evidence may be excluded if its probative value is
substantially outweighed by the danger of unfair prejudice, confusion of the
issues, or misleading the jury, or by considerations of undue delay or needless
presentation of cumulative evidence.”
Cite as 307 Or App 83 (2020) 115
court rejoined that, unlike OEC 403, which turns on the
danger of unfair prejudice, “the standard of ‘prejudice’ in
ORS 132.560(3) is not qualified.” Id. at 633. Again, ordinary
prejudice is the standard. The court acknowledged that, in
the abstract, there was at least some danger that multiple
charges might tempt the jury to decide the cases on the basis
of the defendant’s propensity to commit crimes. Id. at 634.
However, the evidence was also probative of the defendant’s
guilt of the charged offenses, and the defendant admitted
that the two incidents involved few similarities and had no
logical or factual connection. Id. The Supreme Court held
that the trial court had not abused its discretion to allow the
evidence of the offenses in a joint trial. Id.
It is true that the Miller decision, in discussing a
motion to sever, refers to the question whether joinder of
offenses is “likely” to cause prejudice. Id. at 629. The exis-
tence of prejudice, regardless how much, is the concern. The
decision does not indicate that prejudice must be “likely”
to affect the verdict in order to warrant severance or other
relief. By comparison, post-conviction relief requires proof
of prejudice that is more than a possibility while less than
a probability of affecting the verdict. The standards might
seem different at first glance, but they may harmonize. On
close examination, we can see that Miller does not conclude
with language that prejudice there was “unlikely.” See id. at
631-34. Much to the contrary, Miller expressly rejected the
state’s argument that the defendant must be “substantially”
prejudiced. Miller stressed that the “prejudice” at issue there
“is not qualified.” Id. at 633. Any old prejudice would suffice.
None was shown there under circumstances not much dif-
ferent than here. As a result, Miller is not nearly as foreign
as the majority opinion suggests.
Miller makes several determinations that should
guide our decision in this case. First and foremost, we can-
not employ a “categorical” approach to prejudice. See id at
629. A presumption of prejudice from the mere joinder of
charges is exactly that. To assume that the absence of a lim-
iting instruction “allows” the jury to make improper infer-
ences categorically assumes evidence will not be used for
its proper purpose. In addition, Miller demonstrates that,
when multiple offenses are tried in a joint trial, the risk that
116 Delgado-Juarez v. Cain
a jury might misuse the evidence is not self-evident when
the evidence relates to distinct incidents with no logical or
factual interconnection. See id. at 634. Miller should assist
our conclusion that the post-conviction court was correct in
determining that petitioner had failed to prove that preju-
dice from the absence of a limiting instruction was some-
thing more than a mere possibility.
As in Miller, the prosecution here did not argue to
the jury that the charges involving one victim could be used
to support the charges involving another victim. The charges
were distinct, they involved separate times and places, and
the witnesses’ accounts were not interrelated or interdepen-
dent. We are supposed to believe the jury will follow instruc-
tions. The jury was instructed not to let bias or prejudice
influence their assessment of the charges. The jury was
specifically instructed not to consider any evidence of defen-
dant’s prior crimes for the purpose of drawing an inference
that he may be guilty of the offenses charged. As the trial
court noted, the jury’s verdict evidenced separate consider-
ation of the offenses, rather than a uniform treatment of
the charges together. Their assessments of the charges as to
the two victims were different, and their assessment of the
rape charge was acquittal. The verdict demonstrated that
the jury did not treat defendant as “guilty of one, guilty of
all.”
Taking everything into consideration, the law and
the record support the post-conviction court’s conclusion that
petitioner failed to carry his burden of showing something
more than a possibility of prejudice. The mere potential for
prejudice is the most that the majority opinion can surmise.
That is not supposed to be enough.
Given a different understanding of the standards
for reasonable performance and proof of prejudice, I respect-
fully dissent with regard to our decision to reverse the post-
conviction judgment on the second assignment of error.