Genaro-Lopez v. Cain ( 2023 )

106
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted May 22, affirmed July 12, 2023
JORGE CHRISTIAN GENARO-LOPEZ,
Petitioner-Appellant,
v.
Brad CAIN,
Superintendent,
Snake River Correctional Institution,
Defendant-Respondent.
Malheur County Circuit Court
20CV04107; A176101
J. Burdette Pratt, Senior Judge.
Jason E. Thompson argued the cause for appellant. Also
on the brief was Thompson Law, LLC.
Erin K. Galli, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
JOYCE, J.
Affirmed.
Nonprecedential Memo Op: 327 Or App 106 (2023) 107
JOYCE, J.
Petitioner appeals from the denial of his petition for
post-conviction relief. Petitioner was convicted of raping an
acquaintance after a party at which the victim consumed
alcohol and smoked marijuana. After the victim went to
sleep, she woke up to find petitioner having sex with her.
The state charged petitioner with having committed first-
degree rape by having sexual intercourse with someone who
was incapable of consent by way of physical helplessness.
ORS 163.375(1)(d); see also ORS 163.305(4); State v. Marker,
263 Or App 669, 673-74, 329 P3d 781 (2014) (defining physi-
cal helplessness and explaining that someone who is asleep
is physically helpless within the meaning of the statute).
Petitioner admitted to having sex with the victim but tes-
tified that the victim was “awake the whole time” and con-
sented to having sex with him. On appeal, he challenges, in
a single assignment of error, eight rulings on eight separate
claims in his post-conviction petition.1 We affirm.
Failure to consult an expert/offer expert testimony: In
two claims, petitioner asserted that trial counsel was inad-
equate for not consulting an expert and presenting evidence
that the victim’s blood alcohol content did not rise to such a
level that the victim would have been passed out at the time
of the incident. Trial counsel explained that he had neither
consulted an expert nor offered expert testimony on the mat-
ter because (1) he knew the kind of testimony such an expert
would have presented and (2) he believed that the evidence
would have been unhelpful given the defense at trial—that
the victim was awake and consented. In trial counsel’s view,
evidence that the victim was not so intoxicated so as to have
passed out would have hurt the defense. Counsel explained
that evidence that the victim was intoxicated, in his view,
made it more likely that the jury would believe petitioner’s
story that the victim was flirting, uninhibited, and willing
to have sex with a casual acquaintance and would have
1
As the superintendent recognizes, petitioner’s eight challenges should be
framed as separate assignments of error. See State v. Nees, 319 Or App 725, 736
n 2, 511 P3d 67, rev den, 370 Or 212 (2022) (“The grouping of a trial court’s rulings
under a single assignment of error hinders evaluation of each individual ruling
on its merits and is a practice that should not be followed.” (Internal quotation
marks and citation omitted.)).
108 Genaro-Lopez v. Cain
decreased the victim’s credibility in the eyes of the jury. The
post-conviction court credited that testimony and concluded
that counsel had acted reasonably, and that petitioner had
not been prejudiced.
We agree that the theory of petitioner’s defense
rendered counsel’s tactical decisions reasonable and, for the
same reasons, were not prejudicial to petitioner. Richardson
v. Belleque, 362 Or 236, 256, 406 P3d 1074 (2017) (“[W]hen
counsel has reason to believe that pursuing certain investi-
gations would be fruitless or even harmful, counsel’s failure
to pursue those investigations may not later be challenged
as unreasonable.” (Internal quotation marks omitted.));
Thompson v. Belleque, 268 Or App 1, 17, 341 P3d 911 (2014),
rev den, 357 Or 300 (2015) (“Among the universe of reason-
able tactical decisions is the decision not to present expert
evidence.”).
Failure to request a jury instruction on an affirmative
defense: Petitioner asserted that counsel was inadequate for
failing to request a jury instruction that petitioner did not
“know of the facts or conditions responsible for the victim’s
incapacity to consent[.]” ORS 163.325(3); UCrJI 1633. The
burden of proving that affirmative defense, had trial coun-
sel raised it, would have rested with petitioner. Trial coun-
sel explained that, among other factors, he did not request
that instruction because he did not believe that the evidence
supported it, and that in fact the instruction ran contrary
to petitioner’s defense. The post-conviction court, relying
on counsel’s explanation, concluded that trial counsel had
acted reasonably, and that petitioner was not prejudiced.
Again, we agree. No evidence was presented that peti-
tioner did not know that the victim was physically helpless
(asleep); instead, his sole defense was that the victim was
awake throughout and consented to the sexual intercourse.
In that respect, the evidence did not support the instruction
and offering it would have contradicted petitioner’s defense.
See Krummacher v. Gierloff, 290 Or 867, 878-79, 627 P2d
458 (1981) (“Defense counsel regarded it as strategically
unsound to dilute the effect of his credible attack on the
state’s evidence by asserting a theory of defense which was
not credible.”).
Nonprecedential Memo Op: 327 Or App 106 (2023) 109
Failure to request instruction requiring petitioner’s
knowledge that victim was physically helpless: Petitioner
asserted that trial counsel was inadequate for not request-
ing a jury instruction that would have told the jury that the
state had to prove that petitioner “knew” that the victim
was physically helpless (asleep). The post-conviction court
concluded that petitioner failed to prove that he was preju-
diced because, among other reasons and as discussed above,
petitioner’s defense was that the victim was awake and
actively participating in sex. Given that the jury found peti-
tioner guilty, it could not have simultaneously found that
the victim was asleep and that petitioner did not know of
that fact.
Failure to move for an arrest of judgment: Petitioner
asserted that trial counsel acted deficiently by failing to
move in arrest of judgment based on the indictment. The
indictment alleged that petitioner had sexual intercourse
with the victim when she “was incapable of consent by rea-
son of physical incapacitation or physical helplessness.”
“[P]hysical incapacitation” is not one of the conditions defin-
ing first-degree rape. Rather, a victim may be incapable of
consent “by reason of mental defect, mental incapacitation
or physical helplessness.” ORS 163.375(1)(d) (2013) (empha-
sis added). The post-conviction court rejected that claim,
finding that the jury was never instructed that it could find
petitioner guilty if the victim was “physically incapacitated”
and instead was instructed only that it could find petitioner
guilty if it found that the victim was “physically helpless.”
For that reason, and because the state never proceeded at
trial on a theory that the victim suffered from physical inca-
pacitation, petitioner failed to prove that he was prejudiced.
Failure on appeal to assign error to admission of
testimony: Petitioner asserted that appellate counsel acted
deficiently by failing to assign error to admission of a detec-
tive’s testimony about the impact of stress hormones stem-
ming from a traumatic event because it constituted inad-
missible expert testimony. Appellate counsel explained that
they did not assign error to that testimony because the
state below had clarified that it was not trying to qualify
the detective as an expert and that the detective herself
110 Genaro-Lopez v. Cain
said that she was not an expert. The post-conviction court
concluded that petitioner had not shown that appellate
counsel was inadequate or that he had suffered prejudice.
On appeal, petitioner reprises his argument that appellate
counsel was inadequate for not assigning error to the detec-
tive’s testimony because the state had not qualified her as
an expert. In addition, he argues that the detective’s testi-
mony was inadmissible under OEC 703, was hearsay, and
violated petitioner’s rights under the Confrontation Clause
and that appellate counsel was inadequate for not raising
those arguments.
As the superintendent observes, petitioner failed
to preserve the latter series of arguments. The only claim
he preserved was that appellate counsel was inadequate
for failing to assign error to the detective’s “expert” testi-
mony. As to that claim, the post-conviction court correctly
concluded that appellate counsel acted reasonably in not
raising that issue on appeal, given the context in which the
detective gave her testimony. It also correctly concluded that
petitioner had failed to establish prejudice, given that the
detective did not testify as an expert and given that the tes-
timony likely would have been harmless error on appeal.
Failure on appeal to assign error to not giving jury
instruction on consent: Petitioner asserted that appellate
counsel acted deficiently by failing to assign error to the trial
court’s refusal to give a jury instruction that would have
required the state to prove that the victim did not factually
consent to sexual intercourse. But, as the post-conviction
court found, appellate counsel did assign error to the trial
court’s failure to give that instruction and, on appeal here,
petitioner does not challenge that finding. See Meyers v.
Maass, 106 Or App 32, 34 n 1, 806 P2d 695 (1991) (“We need
not consider petitioner’s arguments that disregard the post-
conviction court’s supportable findings of fact.”).
Failure on appeal to assign error to not giving jury
instruction on culpable mental state: Lastly, petitioner
asserted that appellate counsel acted deficiently by failing
to assign error to the trial court’s refusal to give a jury
instruction that would have told the jury that the state had
to show that petitioner knew or was aware of and consciously
Nonprecedential Memo Op: 327 Or App 106 (2023) 111
disregarded a substantial and unjustifiable risk, or failed to
be aware of such a risk, that the victim was incapable of
consent by reason of her physical helplessness. Trial counsel
requested that instruction, the trial court declined to give
it, and appellate counsel did not assign error to that ruling.
But as petitioner’s post-conviction counsel acknowledged at
petitioner’s trial, the proposed jury instruction that trial
counsel proffered was an incorrect statement of the law.
Given that concession, the post-conviction court did not err
in denying relief on petitioner’s claim that appellate coun-
sel unreasonably failed to assign error to the trial court’s
refusal to give that same instruction. The post-conviction
court correctly denied relief.
Affirmed.