Randolph v. Miller ( 2024 )

No. 626 August 28, 2024 705
This is a nonprecedential memorandum opinion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
KEVIN WAYNE RANDOLPH,
Petitioner-Appellant,
v.
Jamie MILLER,
Superintendent,
Snake River Correctional Institution,
Defendant-Respondent.
Malheur County Circuit Court
21CV23590; A180728
J. Burdette Pratt, Senior Judge.
Submitted August 1, 2024.
Jedediah Peterson and O’Connor Weber LLC filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jon Zunkel-deCoursey, Assistant
Attorney General, filed the brief for respondent.
Before Lagesen, Presiding Judge, Kamins, Judge, and
Balmer, Senior Judge.
BALMER, S. J.
Affirmed.
706 Randolph v. Miller
BALMER, S. J.
Petitioner appeals from a judgment denying him
post-conviction relief. After a jury trial, petitioner was con-
victed of numerous sex crimes against his daughter and son,
including three counts of first-degree sodomy, three counts
of first-degree sexual abuse, and three counts of incest. On
appeal from the post-conviction court’s judgment, petitioner
argues that trial counsel was ineffective and inadequate in
failing to effectively cross-examine his ex-wife and daughter
about possible motives for bias. Accepting the post-conviction
court’s supported implicit and explicit factual findings and
reviewing for legal error, see Green v. Franke, 357 Or 301,
312, 350 P3d 188 (2015), we affirm.
A petitioner claiming inadequate assistance of coun-
sel under Article I, section 11, of the Oregon Constitution
has the burden “to show, by a preponderance of the evidence,
facts demonstrating that trial counsel failed to exercise rea-
sonable professional skill and judgment and that petitioner
suffered prejudice as a result.” Trujillo v. Maass, 312 Or
431, 435, 822 P2d 703 (1991). Under the federal standard,
a petitioner is required to “show that counsel’s representa-
tion fell below an objective standard of reasonableness” and
that, as a result, the petitioner was prejudiced. Strickland v.
Washington, 466 US 668, 687-88, 104 S Ct 2052, 80 L Ed 2d
674 (1984). As the Oregon Supreme Court has recognized,
those standards are “functionally equivalent.” 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).
Here, the post-conviction court did not err in con-
cluding that trial counsel’s cross-examination was reason-
able, and that additional cross-examination could have been
harmful. Trial counsel successfully elicited testimony on
cross-examination of petitioner’s ex-wife that their divorce
proceedings were contentious. During closing arguments,
trial counsel used that testimony to suggest that petition-
er’s daughter may have been pressured to fabricate the alle-
gations of abuse. It was reasonable for trial counsel not to
elicit additional testimony about the divorce proceedings,
because it could have resulted in testimony harmful to peti-
tioner, including additional testimony about why petitioner’s
Nonprecedential Memo Op: 334 Or App 705 (2024) 707
ex-wife sought to modify petitioner’s parenting time. In addi-
tion, it risked opening the door to evidence about the nature
of petitioner’s sexual relationship with his ex-wife, evidence
that the trial court had determined was “potentially prob-
lematic” when ruling before trial on evidentiary issues.
Because trial counsel had good reasons not to elicit more
detailed testimony about the divorce proceedings, the post-
conviction court correctly concluded that petitioner failed to
show that trial counsel’s cross-examination of his ex-wife
and daughter was deficient. See Krummacher v. Gierloff, 290
Or 867, 875, 627 P2d 458 (1981) (“[I]f counsel exercises rea-
sonable professional skill and judgment, a reviewing court
will not second-guess the lawyer in the name of the consti-
tution * * *.”).
The post-conviction court also correctly concluded
that petitioner failed to show prejudice because, in fact, trial
counsel did elicit sufficient testimony that allowed him to
argue to the jury that petitioner’s daughter may have been
pressured to fabricate the allegations. Petitioner has not
established that more detailed testimony about the con-
tentious divorce proceedings could have had a tendency to
affect the outcome of the case; indeed, as explained above,
additional testimony on that topic could have been harmful
to petitioner. See Green, 357 Or at 323 (to establish prejudice
for purposes of Article I, section 11, and the federal consti-
tution, a post-conviction petitioner must show that counsel’s
alleged deficiency could have tended to affect the outcome of
the case).
Affirmed.