Hamann v. Miller ( 2024 )

No. 606 August 28, 2024 635
This is a nonprecedential memorandum opinion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
WESLEY HAMANN,
Petitioner-Appellant,
v.
Jamie MILLER,
Superintendent,
Snake River Correctional Institution,
Defendant-Respondent.
Malheur County Circuit Court
20CV05178; A180758
Patricia A. Sullivan, Senior Judge.
Submitted August 1, 2024.
Margaret Huntington and Equal Justice Law filed the
brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin
Gutman, Solicitor General, and Adam Holbrook, Assistant
Attorney General, filed the brief for respondent.
Before Lagesen, Chief Judge, Kamins, Judge, and Balmer,
Senior Judge.
LAGESEN, C. J.
Affirmed.
636 Hamann v. Miller
LAGESEN, C. J.
Petitioner was convicted of 59 sex offenses against
his daughter, some by nonunanimous verdict which have
since been set aside. In this post-conviction proceeding,
he seeks relief from the balance of his convictions on the
ground that his trial lawyers were inadequate and ineffec-
tive, in violation of his rights under Article I, section 11,
of the Oregon Constitution, and the Sixth and Fourteenth
Amendments to the United States Constitution, when they
did not retain an expert witness in child abuse interviewing
“like Dr. [Wendy] Bourg” for the purpose of challenging the
victim’s testimony. The post-conviction court rejected that
claim for several reasons, including that “[p]etitioner, who
has the burden of proof, has failed to show that the expert
would have been available for trial.” Our review is for legal
error and to determine whether the post-conviction court’s
factual findings are supported by the evidence. Green v.
Franke, 357 Or 301, 312, 350 P3d 188 (2015). We affirm.
To prevail on his claim that trial counsel was inade-
quate or ineffective for not calling Bourg or a similar expert,
petitioner was required to prove that Bourg or a witness like
her “would have been available to testify at trial.” Phillips v
Premo, 280 Or App 634, 644, 381 P3d 986 (2016). Here, peti-
tioner presented no evidence that would allow an inference
that an expert other than Bourg would have been available
to testify at trial. As to Bourg’s availability, the evidence in
the record would permit a reasonable factfinder to resolve
that point of fact in different ways. On the one hand, the
record contains a declaration from Bourg stating that she
would have been available “to work on the criminal case
underlying these proceedings, both at the time of trial and
the months leading up to it.” That evidence would permit a
factfinder to find that Bourg was available.
On the other hand, petitioner’s lead attorney testified
in her deposition that she had consulted other attorneys who
had recommended Bourg and that she thought she had con-
tacted Bourg, although she was not certain. Petitioner’s sec-
ond attorney recalled “that somebody had contacted [Bourg]
or was informed either through contact with her or in some
other way that she was so busy at that point she wasn’t * * *
Nonprecedential Memo Op: 334 Or App 635 (2024) 637
taking on any new cases[.]” Although not certain about the
point, petitioner’s second attorney explained that he associ-
ated the memory about consulting Bourg with petitioner’s
case, because he had “not had very many opportunities to be
on a case with co-counsel and have needed Dr. Bourg as an
expert witness.” That evidence, which undermines Bourg’s
declaration, would permit a reasonable factfinder to find,
as the post-conviction court did, that it was not persuaded
that it was more likely than not that Bourg was available
to assist in petitioner’s underlying trial. Said another way,
the testimony of petitioner’s trial attorneys could cause a
reasonable factfinder to doubt Bourg’s representations and
to decline to credit them.
Given the sum of the evidence, the post-conviction
court’s finding that petitioner did not prove the availabil-
ity of Bourg or a similar witness binds us, notwithstanding
Bourg’s representation that she would have been available.
See State v. Johnson, 335 Or 511, 523, 73 P3d 282 (2003)
(explaining that an appellate court is “bound by a trial
court’s ‘finding’ that a party’s evidence is not sufficiently
persuasive”). Accordingly, we affirm.
Affirmed.