Tenorio v. Bowser ( 2022 )

234
Submitted September 3, 2020; reversed and remanded as to petitioner’s first
assignment of error, otherwise affirmed June 8, 2022
EMMANUEL GARCIA TENORIO,
Petitioner-Appellant,
v.
Troy BOWSER,
Superintendent,
Two Rivers Correctional Institution,
Defendant-Respondent.
Umatilla County Circuit Court
CV151107; A168082
513 P3d 1
Petitioner appeals a judgment denying his petition for post-conviction relief
from his convictions for first-degree sexual abuse and first degree unlawful sex-
ual penetration. He raises 10 assignments of error. As to his first assignment of
error, petitioner argues that he received constitutionally inadequate and inef-
fective assistance of trial counsel because his attorney failed to request a jury-
concurrence instruction, and that the post-conviction court erred in concluding
that he had not been prejudiced as a result. Petitioner contends that the evidence
at trial could have permitted the jury to rely on more than one factual occurrence
of each alleged offense in rendering its guilty verdicts. Held: The post-conviction
court erred. Accepting the post-conviction court’s conclusion that trial counsel
had performed deficiently, the Court of Appeals concluded that counsel’s deci-
sion not to request a jury-concurrence instruction was prejudicial to petitioner
because there was more than a mere possibility that some jurors voted to con-
vict petitioner based on one alleged occurrence of conduct, while a similar subset
of jurors voted to convict based on another. The Court of Appeals summarily
rejected petitioner’s remaining assignments of error.
Reversed and remanded as to petitioner’s first assignment of error; otherwise
affirmed.
J. Burdette Pratt, Senior Judge.
Harrison Latto filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
Before Mooney, Presiding Judge, and Pagán, Judge, and
DeHoog, Judge pro tempore.
DeHOOG, J. pro tempore.
Reversed and remanded as to petitioner’s first assign-
ment of error; otherwise affirmed.
Cite as 320 Or App 234 (2022) 235
DeHOOG, J. pro tempore
In 2013, a jury found petitioner guilty of two counts
of first-degree sexual abuse, ORS 163.427, and two counts
of first-degree unlawful sexual penetration, ORS 163.411.1
Petitioner’s charges arose from allegations that he had sex-
ually assaulted his stepdaughter, Z, who was six or seven
years old at the time. Following an unsuccessful direct
appeal of his convictions, petitioner sought post-conviction
relief, asserting that in various ways the performance of his
trial counsel had been constitutionally inadequate and inef-
fective under the state and federal constitutions. The post-
conviction court denied each of petitioner’s claims for relief,
and petitioner now appeals that denial.
Petitioner’s briefing raises 10 challenges to the post-
conviction court’s rulings. All 10 assignments of error, the
last nine of which petitioner advances pro se, assert that the
post-conviction court erred in denying his claims regard-
ing his trial attorney’s performance. As we explain below,
petitioner’s last nine assignments require limited discus-
sion, and we ultimately reject them all. As to petitioner’s
first assignment of error, however, which relates to trial
counsel’s failure to request a jury-concurrence instruction,
we conclude that the post-conviction court erroneously held
that petitioner had not established that his trial attorney’s
concededly deficient performance in that regard had been
prejudicial to him. We therefore reverse and remand as to
the first assignment of error, but otherwise affirm.
We review post-conviction proceedings for errors of
law. Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015).
We are bound by the post-conviction court’s historical find-
ings of fact if there is evidence in the record to support them.
Id. “If the post-conviction court failed to make findings of
fact on all the issues—and there is evidence from which
such facts could be decided more than one way—we will pre-
sume that the facts were decided consistently with the post-
conviction court’s conclusions of law.” Id. We describe the
factual and procedural history of petitioner’s criminal and
post-conviction cases in accordance with those standards.
1
The trial court merged the guilty verdicts on each of the first-degree sexual
abuse charges with the corresponding counts of unlawful sexual penetration.
236 Tenorio v. Bowser
At petitioner’s underlying criminal trial, the evidence
of sexual abuse came primarily through the testimony and
recorded statements of petitioner’s stepdaughter, Z. Z was
approximately eight-and-a-half years old at the time of trial.
Z testified that, at the time of the charged offenses a year
or two earlier, petitioner was married to Z’s mother, Penny,
and petitioner lived with Penny, Z, and Z’s siblings and
half-siblings. In telling the jury what petitioner had done to
her, Z indicated that, on more than one occasion, petitioner
had entered her bedroom late at night, undressed her, and
touched and put his fingers in both her front and back “pri-
vate parts.” On at least one occasion, Z testified, petitioner
had “put his private part on [her] tummy.” Z also testified
that petitioner had “put some kind of cream * * * inside [her]
private part” and that she had struggled to wash it off the
next morning, which the prosecutor later argued could sup-
port the inference that petitioner had ejaculated on her.
Z testified that the abuse had occurred four sepa-
rate times, stating that, “[s]ome of them were when I was
a baby and some of them when I was seven.” After further
questioning, Z clarified that the abuse had occurred twice
during the charged time frame.2 In response to the prose-
cutor’s questioning about petitioner coming in and touching
her on “those two nights,” Z testified that her mother had
been “in the bedroom watching TV,” but indicated that no
other adults had been present when it happened.
Despite Z’s indication that no other adults would
have witnessed the abuse, the jury heard from a third
adult, C, who described concerning circumstances that she
had observed one night while staying at petitioner’s home.
C, who at the time was dating Z’s maternal uncle (Thurston),
testified that she and Thurston had spent the night there
several times. On one of those occasions, C, Thurston, and
Z were all asleep in the living room, with C and Thurston
sleeping on the floor and Z sleeping on her “little bed.”3
2
The jury also was shown a video recording of a forensic interview in which
Z apparently referred to two instances of sexual contact by petitioner. However,
neither the video nor a transcript of its contents is in the post-conviction record.
3
Z had separately described a little “princess bed” that she used to sleep on
the floor in her bedroom when someone else used her regular bed.
Cite as 320 Or App 234 (2022) 237
C awoke and saw petitioner kneeling next to Z’s bed, where
he remained for 30 to 45 minutes. According to C, she had
been too frightened to react at the time because she was
“terrified from a previous thing that had happened.” Once
petitioner left the room, however, C got up to check on Z and
found her completely undressed and uncovered on her bed,
with her clothes and blanket “stacked almost folded” next
to her.4
In closing, the prosecutor summarized Z’s testi-
mony, together with statements that she had made during
a forensic interview and to various lay and law-enforcement
witnesses, as conveying the following facts:
“The [d]efendant came into her bedroom. He pulled off
her shirt and pulled off her panties, and then touched her
on what she called her ‘pee-pee,’ or her vagina, and then
touched her on her butt. She went on to say that [d]efen-
dant also put his finger in her vagina and in her butt.”
The prosecutor further summarized what Z had said about
petitioner putting his penis on her, as well as what she
had said about petitioner putting something “warm [and]
sticky” on her belly, which had been “flaky [and] dried on”
in the morning. As noted, the prosecutor argued that the
latter testimony could support an inference that petitioner
had ejaculated and therefore must have acted with a sexual
purpose.
Notably, in the prosecutor’s initial closing argument,
he stated that,
“based on the evidence, you would be well within your right
to infer that this little girl’s been sexually abused since she
was three years old, and continually when [petitioner] had
access.”
In his rebuttal argument, however, the prosecutor clarified
that the charged offenses did not encompass such a broad
range of conduct. Rather, the prosecutor explained:
4
Petitioner’s trial counsel objected to C’s testimony on the ground that,
because C was the alleged victim of other charges against petitioner that had
been severed for trial, counsel could not effectively cross-examine her. The trial
court overruled that objection without substantially engaging counsel’s ratio-
nale, instead reasoning that C’s testimony was relevant.
238 Tenorio v. Bowser
“She told you what happened: the [d]efendant put his
finger into her vagina[;] he put his finger into her butt.
He did it on two separate occasions she described. And at
least on one of those occasions, he ejaculated on her[,] leav-
ing a poor seven-year old to try to wash that off the next
morning.”
For his part, trial counsel did not argue the tim-
ing, number, or other specifics of the alleged occurrences.
Rather, his focus was on the required elements of the alleged
offenses—such as whether there was proof beyond a reason-
able doubt of actual penetration or that petitioner had acted
with the requisite mental state—and on circumstances that,
in counsel’s view, warranted distrusting any allegations by
Z. Those circumstances included purported flaws in the
investigation, the fact that an earlier investigation into alle-
gations by Z (the abuse alleged to have occurred when she
was three years old) had led to a finding of “unfounded,” and
the fact that Z was “a little girl * * * susceptible to parental
influence” whose biological father was in a heated custody
dispute with Z’s mother, Penny.
As noted, the jury found petitioner guilty of all four
counts involving Z, and the trial court merged the sexual-
abuse charges into petitioner’s convictions for first-degree
unlawful sexual penetration. At least one aspect of peti-
tioner’s sentencing hearing appears to bear on petitioner’s
first assignment of error. At sentencing, the trial court also
considered petitioner’s pro se argument that, in addition to
other arguments that counsel had previously made in sup-
port of a motion for new trial, the court should grant a new
trial because C should not have been permitted to testify.
In petitioner’s view, C’s testimony related only to a separate
incident for which he had not been charged. Specifically,
because the charges at issue involved conduct alleged to
have occurred in Z’s bedroom, whereas C’s testimony related
only to conduct alleged to have occurred in the living room,
her testimony, petitioner argued, was both irrelevant and
prejudicial.5
5
C also was the alleged victim of other charges that were joined in the indict-
ment with the charges involving Z, but the charges involving C had been severed
from those involving Z before the trial at issue in this case.
Cite as 320 Or App 234 (2022) 239
In rejecting that argument, the trial court reasoned
as follows:
“My memory of [C’s] testimony is that she saw you
engaging in conduct which could or could not be, depending
on the jury’s view, but I would assume that they thought
that was an incident of sex abuse.
“I heard no testimony that would lead me to believe that
was not one of the incidents. I guess that’s up for argument,
but that’s the way I heard the evidence.”
The trial court alternatively reasoned that,
“[I]f the evidence is[,] is that you are sexually abusing a
little girl and there’s evidence that you have [previously]
abused that same little girl sexually, I think that leads to
motive, opportunity, intent, and all those things that would
make you guilty of the ones that were charged if I’m wrong
in that these were separate and distinct episodes.”
We affirmed the resulting convictions on direct
appeal without written opinion. State v. Tenorio, 264 Or
App 466, 332 P3d 371 (2014), rev den, 356 Or 685 (2015). In
the ensuing post-conviction proceeding, petitioner asserted,
among other things, that constitutionally adequate and effec-
tive trial counsel would have requested a jury-concurrence
instruction because the evidence at trial could have per-
mitted the jury to rely on more than one factual occurrence
of each alleged offense in rendering its guilty verdicts.
The post-conviction court agreed with petitioner that trial
counsel’s failure to request a jury-concurrence instruction
reflected an absence of reasonable professional skill and
judgment. The court concluded, however, that petitioner
had not shown that he had suffered prejudice as a result of
his trial attorney’s deficient performance. As to petitioner’s
remaining claims, the post-conviction court concluded that
he had not established that his attorney had provided inad-
equate assistance or that he had been prejudiced by any
such shortcomings in counsel’s representation. This appeal
followed.
The general principles governing petitioner’s
assistance-of-counsel related claims are well settled. Both
Article I, section 11, of the Oregon Constitution and the
Sixth Amendment to the United States Constitution protect
240 Tenorio v. Bowser
a criminal defendant’s right to counsel. Montez v. Czerniak,
355 Or 1, 6-7, 322 P3d 487, adh’d to as modified on recons,
355 Or 598, 330 P3d 595 (2014). The Oregon Supreme Court
has recognized that “the standards for determining the
adequacy of legal counsel under the state constitution are
functionally equivalent to those for determining the effec-
tiveness of counsel under the federal constitution.” Id. Both
constitutions provide a right “ ‘not just to a lawyer in name
only, but to a lawyer who provides adequate assistance.’ ”
Id. at 6 (quoting State v. Smith, 339 Or 515, 526, 123 P3d
261 (2005) (emphasis added)). Accordingly, a petitioner may
raise a challenge to the constitutional adequacy of his or
her counsel’s assistance on post-conviction review. See ORS
138.530(1)(a). “To prevail on a post-conviction claim of inad-
equate assistance of counsel, the burden is on the petitioner
to show, by a preponderance of the evidence, facts demon-
strating that trial counsel failed to exercise reasonable pro-
fessional skill and judgment and that the petitioner suffered
prejudice as a result.” Lambert v. Palmateer, 182 Or App 130,
135, 47 P3d 907 (2002), adh’d to as modified on recons, 187
Or App 528, 69 P3d 725, rev den, 336 Or 125 (2003).
The law governing petitioner’s first assignment of
error is similarly settled, though its application may vary.
As he did in his petition for post-conviction relief, peti-
tioner contends in his first assignment of error that his trial
attorney provided inadequate assistance when he failed to
request a jury-concurrence instruction. Petitioner argues
that a jury-concurrence instruction, also known as a “Boots”
instruction, was required here because there was evidence
presented at his trial of more than one episode of sexual
abuse, and the prosecutor did not make an election as to
which episode or episodes resulted in and constituted the
charged, criminal conduct. See State v. Boots, 308 Or 371,
376-79, 780 P2d 725 (1989), cert den, 510 US 1013 (1993)
(explaining necessity of jury concurrence on the material
elements of a crime).
“The right to jury concurrence arises from Article I,
Section 11, of the Oregon Constitution.” State v. Payne
(A163092), 298 Or App 411, 421, 447 P3d 515 (2019). Under
Article I, section 11, “to return a verdict of guilty, the requi-
site number of jurors must ‘agree that the state has proved
Cite as 320 Or App 234 (2022) 241
each legislatively defined element of a crime.’ ” Mellerio v.
Nooth, 279 Or App 419, 429, 379 P3d 560 (2016), rev den,
361 Or 803 (2017) (quoting State v. Pipkin, 354 Or 513, 527,
316 P3d 255 (2013)). There are two situations in which spe-
cial measures may be necessary to ensure jury concurrence.
“One situation occurs when a statute defines one crime but
specifies alternative ways in which that crime can be com-
mitted.” Pipkin, 354 Or at 516. The other situation occurs
when the state charges a defendant with a single violation of
a crime, “but the evidence permits the jury to find multiple,
separate occurrences of that crime.” Id. at 517. In the sec-
ond situation, “the jury must concur as to which occurrence
constitutes the offense.” State v. Teagues, 281 Or App 182,
193, 383 P3d 320 (2016). In that situation, “a trial court has
three primary tools at its disposal to ensure a jury bases its
verdict on a discrete factual situation: a jury instruction, a
statement of issues, or a verdict form.” Payne (A163092), 298
Or App at 422.
Petitioner’s argument implicates the second sit-
uation in which a special instruction may be necessary to
ensure jury concurrence. As noted, petitioner’s principal
contention is that, because the evidence at trial described
multiple episodes of sexual abuse and the prosecutor did not
make an election as to which episode or episodes constituted
the charged, criminal conduct, all reasonable counsel would
have requested a jury-concurrence instruction.6 The post-
conviction court agreed with petitioner in that regard. As
the court explained in its ruling on petitioner’s first claim
for post-conviction relief:
“[Z] testified that [p]etitioner touched and penetrated her
anus and vagina on two separate occasions. The first occa-
sion was described in some detail by [Z]. Petitioner, how-
ever, was charged with only two counts of Unlawful Sexual
Penetration, once involving the anus and once involving the
vagina. The prosecutor did not make an election regarding
the two events.”
6
Petitioner also argues that a jury-concurrence instruction was required
because the charged offense of unlawful sexual penetration could be commit-
ted in alternative ways. However, that argument is not well taken in this case,
because the charging instrument specified the material elements that the state
was required to prove, and the jury instructions that the trial court provided
included those elements.
242 Tenorio v. Bowser
Citing Pipkin, the post-conviction court concluded that,
under those circumstances, petitioner had “prove[d] that
his trial attorney failed to exercise reasonable professional
skill and judgment in failing to request a Boots instruction.”
That is, because the state had charged single crimes but
presented sufficient evidence for the jury to find multiple,
separate occurrences of the charged crimes, petitioner had
been entitled to a jury-concurrence instruction, at least in
the absence of an election by the state.
As noted, however, the post-conviction court found
that petitioner had not established that the absence of such
an instruction prejudiced his right to a fair trial. As to that
point, the court reasoned:
“In this case, it is evident from the record that both the
parties were proceeding on the basis that the first occur-
rence[,] which was described in some detail[,] was the event
that both parties were focusing on. This was the focus of
both parties during the arguments. There is no evidence
that if the jury had been given the concurrence instruction
* * * the jury would have reached a different result.”
In light of its conclusion that petitioner had not shown that
his attorney’s failure to request a jury-concurrence instruc-
tion had any tendency to affect the outcome of his trial, the
post-conviction court denied the first claim for relief.
Petitioner now challenges the post-conviction court’s
ruling that his trial attorney’s failure to request a Boots
instruction was not prejudicial. Taking no issue with the
post-conviction court’s conclusion that trial counsel’s perfor-
mance was deficient in that regard, the superintendent sim-
ply defends the post-conviction court’s prejudice ruling. In
light of that narrowing of the issues on appeal, we similarly
focus our discussion of petitioner’s first assignment of error
on the issue of prejudice.
As the post-conviction court recognized, a claim
of inadequate or ineffective assistance of counsel requires
a showing of prejudice. See Lambert, 182 Or App at 135 (a
petitioner must show both deficient performance and preju-
dice to prevail). To demonstrate prejudice, a petitioner must
show that “ ‘counsel’s failure had a tendency to affect the
result of his trial.’ ” Montez, 355 Or at 7 (quoting Lichau v.
Cite as 320 Or App 234 (2022) 243
Baldwin, 333 Or 350, 359, 39 P3d 851 (2002)). Although peti-
tioner does not dispute that burden, he gleans from our case
law and that of the Supreme Court what he characterizes as
“more of a rebuttable presumption” of prejudice arising from
counsel’s failure to request a jury-concurrence instruction.
In particular, petitioner cites the Supreme Court’s decisions
in State v. Hale, 335 Or 612, 75 P3d 448 (2003), and State
v. Lotches, 331 Or 470, 17 P3d 1045 (2000), cert den, 534 US
833 (2001), noting that, in both decisions, the court found
plain error despite limited discussion as to how the omission
of a jury-concurrence instruction in those cases had been
prejudicial.
We, however, have previously rejected a similar
argument under analogous circumstances. See Mellerio, 279
Or App at 427, 433-34 (rejecting the petitioner’s argument
that failure to request a concurrence instruction was “cate-
gorically prejudicial”). Instead, we have consistently applied
a practical, contextual approach in assessing prejudice, as
first articulated in State v. Ashkins, 357 Or 642, 357 P3d
490 (2015), a direct-appeal case. Mellerio, 279 Or App at 434(holding that harmless-error analysis in Ashkins relating
to erroneous omission of a concurrence instruction simi-
larly applies to question of whether trial counsel’s failure
to request instruction was prejudicial for purposes of post-
conviction relief); see Wilson v. Premo, 280 Or App 372, 386,
381 P3d 921 (2016), rev den, 360 Or 752 (2017) (same). Under
that approach, the “court should assess putative prejudice
(or lack thereof) ‘in the context of the evidence and record at
trial, including the parties’ theories of the case with respect
to the various charges and defenses at issue.’ ” Mellerio, 279
Or App at 433 (quoting Ashkins, 357 Or at 660).
Given the foregoing case law, we reject petitioner’s
contention that the failure to request an appropriate Boots
instruction gives rise to a rebuttable presumption of prej-
udice. Rather, we consider the parties’ arguments and
the post-conviction record using the practical, contextual
approach adopted through that case law. Applying that
approach, however, we ultimately agree with petitioner that
the post-conviction court erred in determining that peti-
tioner had not been prejudiced by his trial attorney’s defi-
cient performance.
244 Tenorio v. Bowser
Emphasizing language in Lotches, in which the
court found harm based largely on whether “juror confusion
was likely,” 331 Or 470, petitioner asserts that, in his case,
there were multiple sources of potential juror confusion.
Petitioner first argues that two aspects of the testimony
could have confused the jury as to which factual scenario
related to the charged, criminal conduct. For one thing, he
contends, the fact that Z’s own testimony described multiple
instances of abuse could itself have caused confusion. And
for another, C’s testimony about petitioner’s encounter with
Z in the living room gave the jurors yet another factual sce-
nario to consider as possible criminal conduct, potentially
causing further confusion.
In assessing that argument, it bears emphasis that
the fact that Z testified to multiple instances of conduct—
and that C may have been describing yet another instance
of charged conduct—is merely a basis for requiring a jury-
concurrence instruction in the first place. Thus, although
that circumstance was the basis of the post-conviction
court’s conclusion that trial counsel had provided inade-
quate assistance, it cannot, alone, establish prejudice for
purposes of an inadequate-assistance claim. That is, even
assuming—as is undisputed on appeal—that Z’s account of
more than one criminal occurrence (with or without C’s tes-
timony) obligated trial counsel to request a jury-concurrence
instruction, that is only half of the required showing.
Moreover, in the absence of C’s testimony, Z’s iden-
tification of multiple, distinct episodes in which petitioner
had sexually assaulted her arguably failed to raise the sort
of “circumstantial and evidentiary distinctions” that might
otherwise have resulted in an impermissible “mix-and-
match” verdict. Mellerio, 279 Or App at 436 (finding such
distinctions where evidence would support “diametrically
different [jury] inferences” as to each of two incidents that
could have supported coercion charge). For example, noth-
ing about the evidence or arguments at trial suggested
instance-specific questions of credibility for the jury to eval-
uate. And even though Z’s testimony that petitioner had
“put his private part on [her] tummy” might have referred
to only one of the episodes of criminal conduct, Z’s account
of petitioner’s conduct and the surrounding circumstances
Cite as 320 Or App 234 (2022) 245
was otherwise undifferentiated. Thus, we see nothing that
would indicate that some jurors might have been persuaded
only as to one instance of conduct described by Z, with oth-
ers being persuaded only as to another. See Ashkins, 357
Or at 662-64 (trial court’s failure to give jury-concurrence
instruction was harmless where nothing indicated that “the
jury would have reached one conclusion as to some of the
occurrences but a different conclusion as to others”).
Similarly, petitioner’s defenses at trial were not
such that some jurors might have accepted them as to one
occurrence, while others might have accepted them as to
another. Petitioner’s defense strategy was not specific to any
particular location or instance of alleged conduct. Rather,
his strategy was to challenge the allegations as a whole, by
questioning whether the abuse had occurred at all, whether
the state had proven that any abuse involved sexual pene-
tration, whether any conduct had been engaged in for the
purpose of sexual gratification, whether the investigation of
the alleged abuse had been “sloppy,” and whether the vic-
tim’s memories or testimony had been unduly influenced by
her father and paternal grandmother. Thus, as with Z’s tes-
timony, the way in which petitioner’s trial attorney defended
the case did not in any way differentiate between alleged
criminal episodes in a way that might have led to a “mix-
and-match” verdict. See id. at 662 (no reversible error where
defense did not call into question the victim’s account of any
particular occurrence).
Thus, had the jury heard only Z’s account of peti-
tioner’s alleged conduct and trial counsel’s specific chal-
lenges to it, we might well agree with the post-conviction
court’s determination that petitioner did not establish prej-
udice. But Z’s testimony did not stand alone—the jury also
heard C testify about what she had seen petitioner do in the
living room. The superintendent’s response brief suggests
that we can safely disregard that testimony, because the
state did not rely on it as an instance of charged conduct. In
defending the post-conviction court’s rationale, the superin-
tendent argues:
“As the [post-conviction] court noted, the state made
clear during its closing argument that the incident about
246 Tenorio v. Bowser
which the victim testified in detail formed the basis for
the charged offenses. The state recounted for the jury the
victim’s testimony that petitioner had entered her bed-
room, pulled off her shirt and pulled down her underwear,
touched her on both her vagina and anus, and then put
his finger in her vagina and anus. * * * The state explicitly
told the jury that those actions, performed during that sin-
gle incident, formed the basis of the four charged sexual
offenses.”
We disagree for two reasons. First, the state did
not “explicitly [tell] the jury that those actions, performed
during that single incident, formed the basis of the four sex-
ual offenses.” (Emphasis added.) Rather, as set out above,
320 Or App at 238, the state contended that Z had described
two instances that could form the basis of the jury’s ver-
dict, stating, “She told you what happened: the [d]efendant
put his finger into her vagina[;] he put his finger into her
butt. He did it on [the] two separate occasions she described.”
(Emphasis added.) Thus, the post-conviction record does not
bear out the superintendent’s contention in that regard.
Second, to the extent that we might otherwise be
bound by the post-conviction court’s apparent finding of
fact as to which criminal episode was the focus of the par-
ties at trial, that finding is not binding here, because the
record does not support it. The post-conviction court stated,
“[i]n this case, it is evident from the record that both the
parties were proceeding on the basis that the first occur-
rence[,] which was described in some detail[,] was the event
that both parties were focusing on.” However, as set forth
above, 320 Or App at 242, the trial court made essentially
the opposite finding based upon its observation of the trial.
That is, in rejecting petitioner’s pro se argument in
support of a new trial, the court expressed its understand-
ing that C’s testimony related to the charged offenses, even
though C described events occurring in the living room
rather than the bedroom and that did not expressly involve
any of the physical acts that Z attributed to petitioner:
“My memory of [C’s] testimony is that she saw you
engaging in conduct which could or could not be, depending
on the jury’s view, but I would assume that they thought
that was an incident of sex abuse.
Cite as 320 Or App 234 (2022) 247
“I heard no testimony that would lead me to believe that
was not one of the incidents. I guess that’s up for argument,
but that’s the way I heard the evidence.”
(Emphasis added.) Thus, even if the post-conviction court’s
reference to “the first occurrence[,] which was described in
some detail” was intended to encompass both Z’s account
of petitioner “put[ting] his private part on [her] tummy” in
the bedroom and C’s account of petitioner kneeling next to
Z’s bed in the living room—meaning that those two sub-
stantially different accounts actually described the same
episode—the record does not support the finding that the
focus of the trial was on a single “occurrence.” Unlike the
post-conviction court, the trial court heard the evidence and
arguments of counsel firsthand. And given the trial court’s
view that the jury would have understood C’s testimony to
describe “one of the incidents” of sexual abuse (emphasis
added), we conclude that the post-conviction court’s finding
that petitioner’s trial focused on a single occurrence lacks
evidentiary support in the record. Accordingly, that finding
is not binding on appeal.
That conclusion has significant consequences. It
means that, contrary to the post-conviction court’s under-
standing, the jury in petitioner’s criminal trial had more
than one instance of conduct to consider in determining
whether the state had proved the charged offenses. True, if
despite having multiple occurrences to choose from, the jury
believed that Z’s graphic accounts of petitioner putting his
penis on her stomach and “put[ting] some kind of cream * * *
inside [her] private part” described the same occurrence
as C’s vague account of petitioner kneeling by Z’s bed, then
counsel’s failure to request a jury-concurrence instruction
may have been immaterial. That is, under those circum-
stances a mix-and-match verdict would remain unlikely.
But here it is far from clear that Z and C were describing
the same episode or that the jury would have understood
their testimony in that way.
As a result, a mix-and-match verdict was a real pos-
sibility in petitioner’s trial. Specifically, some jurors may well
have been persuaded by Z’s detailed account of what peti-
tioner had done to her and her perceptions of that conduct,
248 Tenorio v. Bowser
but unpersuaded that C’s vague account described a sexual
assault of any sort, much less proved an assault beyond a
reasonable doubt. Others may have voted to convict based
on their view that C’s testimony corroborated Z’s description
of petitioner sexually touching and penetrating her on that
occasion, but harbored doubts regarding Z’s descriptions of
petitioner’s more graphic conduct, which C had not observed
and so likely occurred on another occasion, if at all. In other
words, there is at least some basis to believe that some—but
less than all—of the jurors might have voted to convict peti-
tioner on the basis of conduct alleged to have occurred in the
bedroom and unwitnessed by anyone other than Z, while a
similar subset of jurors might have voted to convict on the
basis of conduct that occurred in the living room and that
was corroborated by a third-party witness.
In sum, contrary to the post-conviction court’s con-
clusion, petitioner has established that his trial attorney’s
failure to request a jury-concurrence instruction had a ten-
dency to affect the result of his trial and that he is therefore
entitled to post-conviction relief. See Montez, 355 Or at 7;
see also Green, 357 Or at 322 (“[T]he tendency to affect the
outcome standard demands more than mere possibility,
but less than probability.”). Had counsel requested a jury-
concurrence instruction, the jury would have known that
its verdict as to each count had to be based on the same
factual occurrence. See Teagues, 281 Or App at 193 (jury-
concurrence instruction explains that “the jury must concur
as to which occurrence constitutes the offense”). Because
the jury was given multiple factual occurrences to choose
from and was not advised of that requirement, we are per-
suaded that there is “more than [a] mere possibility” that
counsel’s failure caused petitioner prejudice. Green, 357 Or
at 322. The post-conviction court therefore erred in denying
petitioner’s first claim for relief.
Finally, petitioner, on his own behalf, raises nine
additional assignments of error that largely reprise vari-
ous ineffective-assistance claims that the post-conviction
court rejected as failing both the performance and preju-
dice prongs of such claims. We have reviewed and evalu-
ated each additional assignment, all of which were properly
preserved. Having reviewed those arguments, we conclude
Cite as 320 Or App 234 (2022) 249
that, although we do not necessarily agree that petitioner
failed to satisfy both prongs as to each claim, he did fail to
satisfy at least one prong as to every claim. As a result, the
post-conviction court did not err in denying the petition for
post-conviction relief as to those claims.
Reversed and remanded as to petitioner’s first
assignment of error; otherwise affirmed.