Brunkal v. Cain ( 2024 )

652 July 3, 2024 No. 475
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
ANDREW JOHN BRUNKAL,
Petitioner-Appellant,
v.
Brad CAIN,
Superintendent,
Snake River Correctional Institution,
Defendant-Respondent.
Malheur County Circuit Court
18CV31412; A175409
Patricia A. Sullivan, Senior Judge.
Submitted May 23, 2024.
Jedediah Peterson and O’Connor Weber LLC filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rebecca M. Auten, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
KAMINS, J.
Affirmed.
Nonprecedential Memo Op: 333 Or App 652 (2024) 653
KAMINS, J.
Petitioner, who was convicted of multiple sex crimes
occurring over the course of seven years against two child
victims, appeals a judgment denying him post-conviction
relief (PCR). On appeal, he asserts four assignments of error
alleging ineffective assistance of counsel. We affirm.
We review a post-conviction court’s denial of relief
for legal error and accept the court’s implicit and explicit
factual findings, provided that there is evidence in the
record to support them. Green v. Franke, 357 Or 301, 312,
350 P3d 188 (2015). To be entitled to post-conviction relief,
under the state and federal constitutions, petitioner must
demonstrate both that counsel failed to exercise reasonable
professional skill and judgment and that petitioner suffered
prejudice as a result. See McMullin v. Amsberry, 310 Or App
542, 551, 485 P3d 278 (2021) (explaining that the state and
federal tests for reviewing inadequate/ineffective assistance
of counsel claims are “functionally equivalent”).
In his first assignment of error, petitioner contends
that his trial counsel was ineffective and inadequate in fail-
ing to object to witness testimony that breached a suppres-
sion order. Petitioner had previously successfully argued
that the court must suppress any statements made after he
invoked his Miranda rights. However, the statements that
petitioner contends that trial counsel should have object to
occurred immediately prior to his invocation and therefore
were not protected by the suppression order. As such, trial
counsel was not deficient in not objecting to the testimony
because “reasonable counsel could have considered such an
objection unlikely to succeed.” Rudnitskyy v. State of Oregon,
303 Or App 549, 562, 464 P3d 471 (2020).
In his second assignment of error, petitioner con-
tends that his trial counsel was ineffective for not object-
ing to a detective’s testimony regarding petitioner’s right
to remain silent. During petitioner’s trial, the detective
testified that while he was driving petitioner to the police
station, petitioner asked the detective if “this is in regards
to [petitioner] touching” the victims. According to the tes-
timony, after the detective confirmed that it was about the
654 Brunkal v. Cain
touching, petitioner did “nothing * * * substantive to deny
the allegation.” Petitioner’s trial counsel did not object to
that testimony.
Based on that exchange, petitioner argues that his
trial counsel was ineffective, because the detective imper-
missibly commented on petitioner’s right to silence. We
disagree. First, petitioner’s trial counsel had previously
objected to similar testimony, and the trial court overruled
that objection. As the PCR court concluded, it was reason-
able for trial counsel not to repeat an objection that had
already failed and draw additional attention to the testi-
mony. Additionally, petitioner’s trial counsel immediately
cross-examined the detective, arguing that petitioner did
deny the allegations shortly after the exchange at issue,
undermining the detective’s testimony and credibility. See
Grant v. Coursey, 277 Or App 165, 182, 370 P3d 892, rev den,
360 Or 235 (2016) (explaining that trial counsel exercised
professional skill and judgment even though the prosecu-
tor “commented on [petitioner’s] invocation of the right to
remain silent” because trial counsel “did not sit idly while
the prosecutor exploited petitioner’s invocation[.] * * * Rather,
he tried to use that same evidence to petitioner’s advantage”
during trial counsel’s closing argument.). Although the case
may have been tried differently by a different attorney, trial
counsel’s strategic choice was not constitutionally deficient.
See Burdge v. Palmateer, 338 Or 490, 498-99, 112 P3d 320
(2005) (explaining that a trial counsel’s decision did not
amount to inadequate assistance of counsel where “[i]t may
be that another lawyer would have tried the case differently”
(internal quotation marks omitted)).
In his third assignment of error, petitioner contends
that his trial counsel was inadequate and ineffective in not
requesting a jury concurrence instruction. The PCR court
agreed that petitioner’s trial counsel was deficient but con-
cluded that petitioner failed to demonstrate prejudice. On
appeal, petitioner argues that he was prejudiced because
the jury “could have believed some acts occurred, but not
others.” Assuming that trial counsel was deficient, we agree
that petitioner was not prejudiced by any deficiency. The fac-
tual circumstances of this case—which involved two victims
Nonprecedential Memo Op: 333 Or App 652 (2024) 655
testifying in broad terms to many years of repeated abuse—
indicate that the jury would not “have reached one conclu-
sion as to some of the occurrences but a different conclusion
as to others.” See State v. Ashkins, 357 Or 642, 662-63, 357
P3d 490 (2015) (concluding that the lack of a concurrence
instruction was harmless when the evidence from a child
victim of multiple years of abuse was “nonspecific and undif-
ferentiated” and thus “there was nothing to indicate that
* * * the jury would have reached one conclusion as to some
of the occurrences but a different conclusion as to others”).
Accordingly, petitioner did not establish prejudice.
In his final assignment of error, petitioner con-
tends that trial counsel acting reasonably would have filed
a demurrer or requested an election1 regarding the lack of
specificity in the indictment. We disagree. First, the indict-
ment properly tracked the statutory language and thus it is
not clear that such a motion would have been successful. See
State v. Hale, 335 Or 612, 621, 75 P3d 448 (2003) (explaining
that “an indictment generally is sufficient if it charges an
offense in the words of the statute”). Second, trial counsel
explained that he did not file a demurrer because it would
not have been helpful to his overall strategy which was to
highlight and take advantage of the fact that the victims
were “not being specific.” That tactical decision did not
“reflect an absence or suspension of professional skill and
judgment.” Cunningham v. Thompson, 186 Or App 221, 226,
62 P3d 823, adh’d to as modified on recons, 180 Or App 289,
71 P3d 110 (2003), rev den, 337 Or 327 (2004). For similar
reasons, trial counsel’s decision not to move for an election
was a reasonable choice given the defense strategy of deny-
ing all acts of sexual abuse and taking advantage of the lack
of specificity of the allegations. Accordingly, petitioner did
not establish that his trial counsel performed unreasonably.
Affirmed.
1
The superintendent contends that petitioner did not preserve his argu-
ment relating to trial counsel’s failure to request an election. We assume without
deciding that petitioner’s argument is preserved.