Torres v. Persson ( 2020 )

466
Argued and submitted August 7, 2018, affirmed July 15, 2020
TONISA MARIA TORRES,
Petitioner-Appellant,
v.
Rob PERSSON,
Superintendent,
Coffee Creek Correctional Facility,
Defendant-Respondent.
Washington County Circuit Court
16CV42145; A166028
471 P3d 119
Petitioner appeals a judgment denying her post-conviction relief related to
her allegations that she received constitutionally inadequate and ineffective
counsel at trial. At trial, petitioner was convicted of robbery in the first degree
and unauthorized use of a vehicle after the state alleged that petitioner had
aided and abetted her husband in committing those crimes. On appeal, petitioner
argues that the post-conviction court erred in denying her relief. Specifically,
she argues that she was prejudiced by her counsel’s failure to request two jury
instructions that explained that a person’s mere presence at the scene of a crime
or acquiescence to a crime is insufficient to establish that the person has aided
and abetted the commission of a crime. The superintendent contends that those
instructions were not necessary and, even if they were, petitioner was not prej-
udiced by counsel’s failure to request them. Held: The post-conviction court did
not err. Petitioner did not meet her burden of establishing that her trial counsel
was deficient because she did not establish that all counsel exercising reasonable
professional skill and judgment would have requested the instructions under the
circumstances of petitioner’s trial.
Affirmed.
Linda Louise Bergman, Senior Judge.
Jason E. Thompson argued the cause for appellant. Also
on the brief was Ferder Casebeer French & Thompson, LLP.
Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before DeHoog, Presiding Judge, and DeVore, Judge, and
Aoyagi, Judge.*
______________
* DeVore, J., vice Hadlock, J. pro tempore.
Cite as 305 Or App 466 (2020) 467
DeHOOG, P. J.
Affirmed.
468 Torres v. Persson
DeHOOG, P. J.
Petitioner appeals a judgment denying her post-
conviction relief related to her allegations that she received
constitutionally inadequate and ineffective counsel at trial.
In the underlying prosecution, a jury found petitioner guilty
of robbery in the first degree and unauthorized use of a vehi-
cle, based, in part, on the state’s theory that petitioner had
aided and abetted her husband in committing the robbery.1
Petitioner raises seven assignments of error, each contend-
ing that the post-conviction court erred in concluding that
she had not established that her trial attorney’s performance
fell below the constitutional standards. We write only to
address petitioner’s third and fourth assignments of error,
which relate to special jury instructions that petitioner con-
tends her attorney should have requested. The instructions
would have told the jury that, in the absence of other evi-
dence, a person’s mere presence at the scene of a crime or
acquiescence to a crime is insufficient to establish that the
person has aided and abetted the commission of a crime.
According to petitioner, all attorneys exercising reasonable
professional skill and judgment would have requested those
instructions; petitioner further contends that she was prej-
udiced by her attorney’s failure to request them here. The
superintendent responds that those instructions were not
necessary under the circumstances and that, even if counsel
should have requested them, petitioner was not prejudiced
by counsel’s failure to do so. We conclude that petitioner
has not established that trial counsel’s performance was
constitutionally deficient. Accordingly, we affirm the post-
conviction court’s judgment rejecting her claims.
“We review the grant or denial of post-conviction
relief for legal error. In doing so, we accept the post-conviction
court’s express and implicit findings of fact if there is evi-
dence in the record to support them.” Rudnitskyy v. State of
Oregon, 303 Or App 549, 550, 464 P3d 471 (2020) (internal
quotation marks, citation, and brackets omitted). We state
the relevant facts accordingly.
Petitioner’s charges arose from an incident in which
her husband, Aguirre, returned home after midnight and
1
Petitioner was also convicted of unlawful possession of methamphetamine.
Cite as 305 Or App 466 (2020) 469
robbed a man, M, who was there at petitioner’s invitation.
Petitioner and Aguirre had met M weeks earlier at a local
bar. Without telling Aguirre or M’s girlfriend, petitioner and
M had developed a relationship of some kind. According to M,
the relationship was largely one-sided, as petitioner would
call him repeatedly, asking him to go out drinking and gam-
bling. Whatever the true nature of their relationship, it was
undisputed that the two socialized to some degree in the
weeks preceding the robbery.
During that time, petitioner’s resources were lim-
ited because her vehicle had recently been damaged in a
crash, leaving her without personal transportation, and she
was awaiting a substantial payment to which she was peri-
odically entitled. M, on the other hand, had at least some
resources. He drove his girlfriend’s car and was paid $500 in
cash each week, which he carried in his wallet. Their rela-
tionship reflected that disparity. For example, on one occa-
sion, M drove petitioner to a casino, where the two of them
gambled solely with M’s money. And, on another occasion,
petitioner called M from the hospital, after which he drove
her home and lent her money to pay for a prescription.
On the night of the robbery, petitioner invited M to
have drinks at her apartment because it was too late to go
to a bar. M asked about petitioner’s husband several times,
but petitioner assured him that she and Aguirre had sepa-
rated and that he had gone to California. When M pressed
further, petitioner told him that she had confirmed with
Aguirre’s sisters that he was in California with them.
After M arrived, the two sat outside petitioner’s
apartment for about five minutes, where they had a drink
and smoked cigarettes. Petitioner then suggested that M
get some music from his car so that they could listen to it
in her apartment. M went to his car as suggested. When M
returned to petitioner’s apartment, he noticed that she was
texting someone on a cellphone.
For a brief time after that, petitioner and M sat sep-
arately in a room near the front door, having a drink and
listening to music. Within five minutes, however, Aguirre
entered the apartment unannounced and locked the door
behind him. Aguirre was wearing gloves. Petitioner asked
470 Torres v. Persson
Aguirre how he had gotten into the apartment, but, accord-
ing to M, she did not appear alarmed and remained seated
on a couch smoking a cigarette. Aguirre removed a gun from
behind his back and put it to M’s head.2 Aguirre told M to
empty his pockets onto the couch and then, even though M
complied with his demand, struck him on the head with the
gun. Aguirre also demanded that M give him his car keys
and, at some point, pulled out a large knife and held it to M’s
ribs.
M testified that Aguirre finally relented when
petitioner told Aguirre to “ ‘let him go’ ” and “ ‘leave him.’ ”
According to M, Aguirre then took his phone so that he could
not call the police and told him to get out of the apartment.
M left the apartment, but immediately headed to a nearby
grocery store to seek help. On the way there, he saw the car
that he had left at petitioner’s apartment drive by. Because
the car had tinted windows, he was unable to say who was
driving or how many people were in the car. The car was
located two days later, but, by then, its tires and rims were
different, its stereo had been removed, and M’s possessions
were gone.
At petitioner’s criminal trial, the state’s theory was
that she had aided and abetted Aguirre in robbing M and
stealing his girlfriend’s car and, therefore, was guilty of rob-
bery in the first degree and unauthorized use of a vehicle.
Specifically, the prosecution argued that petitioner had been
involved in the planning of both crimes and had invited M
to the apartment that night under the pretext that Aguirre
was out of state, after which she had texted Aguirre to let
him know that M had arrived. Unlike it did with regard to
petitioner’s presence when Aguirre robbed M, the state put
on no evidence connecting petitioner with the victim’s car
after the robbery.3 The only apparent evidence of petitioner’s
2
Although M believed at the time that Aguirre’s gun was real, it was later
determined that it had more likely been a pellet gun.
3
In support of another assignment of error, petitioner suggests that the pros-
ecution put on additional evidence that, if believed, could support an inference
that she had been involved with the unauthorized use of M’s vehicle after the
robbery took place. Petitioner does not cite anything in the record to support that
contention, which, in any event, has no bearing on our analysis of her third and
fourth assignments of error.
Cite as 305 Or App 466 (2020) 471
post-robbery conduct was Aguirre’s testimony that peti-
tioner had stayed home when he drove off with the stolen
car.
In light of the state’s theory that petitioner was lia-
ble for Aguirre’s conduct, the trial court instructed the jury
on aiding and abetting as follows:
“A person who is involved in committing a crime may be
charged and convicted of that crime if, with intent to pro-
mote or facilitate commission of the crime, that person aids
and abets someone in committing the crime. Under these
circumstances it is not necessary for that person to be per-
sonally present at the time and place of the commission of
the crime.
“A person aids or abets another person in the commis-
sion of a crime if the person: (1) with intent to promote or
make easier the commission of the crime; (2) encourages,
procures, advise[s] or assist[s] by act or advice the planning
or commission of the crime.
“A person acts intentionally or with intent when the
person acts with a conscious objective to cause a particular
result or to engage in particular conduct. When used [in
the phrase ‘]with intent to promote or make easier the com-
mission of a crime[,’ ‘]intentionally or with intent[’] means
that a person acts with a conscious objective to promote or
make [it] easier for another person to commit [a] crime by
encouraging, procuring, advising or assisting * * * the plan-
ning or commission of the crime.
“For criminal liability[,] Oregon law requires the per-
formance of a voluntary act or omission. An act is a bodily
movement. A voluntary act is a voluntary movement per-
formed consciously. An omission is a failure to perform an
act, the performance of which is required by law.”
The jury returned unanimous verdicts finding
petitioner guilty on all counts. We affirmed petitioner’s
convictions on direct appeal without written opinion, and
the Supreme Court denied review. State v. Torres, 274 Or
App 859, 364 P3d 1012 (2015), rev den, 358 Or 551 (2016).
This post-conviction proceeding followed. With respect to
petitioner’s third and fourth assignments of error, the post-
conviction court concluded:
472 Torres v. Persson
“Petitioner faults trial attorney for not requesting these
instructions. If requested, they would have been proper
and a court would have given them, but they were not nec-
essary. The entire case, from both sides[,] was whether or
not petitioner planned the robbery and lured the victim to
the scene so that her husband could rob him. All of the evi-
dence was about her actions before her husband came into
the apartment with a gun and knife and demanded money
and the car keys. The DA never argued that she * * * was
guilty because she just sat there when it happened or that
she rode in or used the stolen car after the robbery. All
of the testimony and arguments concerned planning. The
failure to request them was not inadequate representation
and there was no prejudice.”
As noted, petitioner raises seven assignments of error
on appeal, of which we write to address two—petitioner’s
third and fourth assignments of error—and reject the others
without substantial discussion.4 In petitioner’s third assign-
ment of error, she argues that, pursuant to State v. Moriarty,
87 Or App 465, 468, 742 P2d 704, rev den, 304 Or 547 (1987),
trial counsel should have requested a special jury instruc-
tion informing the jury that “mere presence” at the scene
of a crime is insufficient to constitute aiding and abetting.
Similarly, in her fourth assignment of error, petitioner cites
State v. Stark, 7 Or App 145, 151, 490 P2d 511 (1971), and
argues that all competent counsel would have requested
a special jury instruction stating that merely acquiescing
to the commission of a crime is not sufficient to constitute
aiding and abetting. Petitioner argues that, because each of
those instructions is a correct statement of law, they would
have been given by the trial court if requested, and the
absence of each instruction prejudiced petitioner by effec-
tively lowering the bar for conviction.
4
As to two of the remaining assignments of error—petitioner’s first and sec-
ond assignments—she argues that trial counsel was constitutionally deficient
in failing to move for judgment of acquittal on the grounds that there was no
evidence indicating that petitioner had committed an act or had the necessary
intent to aid and abet Aguirre in committing a crime. We agree with the post-
conviction court’s conclusion that “[t]here was sufficient evidence on both aid
and abet and intent so that a judgment of acquittal would have been denied.”
As a result, petitioner was not prejudiced by the lack of a motion for judgment
of acquittal even if petitioner could somehow establish that counsel should have
made such a motion on that basis.
Cite as 305 Or App 466 (2020) 473
The superintendent’s response is twofold. First, the
superintendent questions the post-conviction court’s conclu-
sion that the instructions would have been given if requested.
In the superintendent’s view, both instructions were unnec-
essary, and the fact that they were accurately drawn from
appellate court decisions did not render them appropriate
instructions for the jury. Second, the superintendent asserts
that, because the state’s theory of the case was not based
solely on petitioner’s presence or acquiescence in Aguirre’s
conduct, petitioner suffered no prejudice as a result of her
attorney’s alleged incompetence. For the reasons that follow,
we ultimately agree with the superintendent’s argument
that trial counsel’s decision to forgo requesting special jury
instructions was reasonable, and we therefore conclude that
the post-conviction court did not err in denying petitioner’s
inadequate assistance claims.
Before turning to the parties’ arguments, we begin
with a review of the applicable legal standards. “Post-
conviction relief is warranted when there has been a ‘sub-
stantial denial’ of a petitioner’s ‘rights under the Constitution
of the United States, or under the Constitution of the State
of Oregon, or both, and which denial rendered the conviction
void.’ ” Green v. Franke, 357 Or 301, 311, 350 P3d 188 (2015)
(quoting ORS 138.530(1)(a)). “To obtain relief on a claim of
inadequate assistance of counsel, petitioner must establish,
by a preponderance of the evidence, that [her] trial counsel
did not exercise the professional skill and judgment required
by Article I, Section 11, [of the Oregon Constitution] and
that [she] suffered prejudice as a result.”5 Rudnitskyy, 303
Or App at 555-56.
To satisfy the performance prong of an inadequate-
assistance claim, “it is not enough to show that the lawyer
could or even should have chosen a different course of action;
5
Although petitioner requests relief under both the state and federal consti-
tutions, it is well-settled that the state and federal standards of inadequate and
ineffective assistance of counsel are “functionally equivalent.” Jackson v. Franke,
364 Or 312, 315, 434 P3d 350 (2019); see also 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)
(same). Because petitioner does not seek relief separately under the two constitu-
tions, we address petitioner’s claims under the Oregon Constitution. Rudnitskyy,
303 Or App at 556 n 4.
474 Torres v. Persson
petitioner must show that any reasonable attorney would
have taken the steps that petitioner now asserts [her] attor-
ney should have taken.” Id. at 556. Stated differently, we
ask whether, “in the circumstances that confronted peti-
tioner’s trial counsel, no reasonable trial lawyer could make
the decision that petitioner’s trial counsel, in fact, made.”
Sullivan v. Popoff, 274 Or App 222, 232, 360 P3d 625 (2015),
rev den, 358 Or 833 (2016).
If petitioner satisfies the performance prong, she
must also establish that trial counsel’s inadequate perfor-
mance caused her prejudice. The prejudice prong requires
petitioner to establish that trial counsel’s failure to exercise
reasonable professional skill and judgment “had a tendency
to affect the result of the trial.” Jackson v. Franke, 364 Or
312, 316, 434 P3d 350 (2019) (internal quotation marks
omitted). A tendency “demands more than mere possibility,
but less than probability.” Green, 357 Or at 322.
We begin with an analysis of the performance
prong, which, it turns out, ultimately resolves petitioner’s
appeal. Whether trial counsel could reasonably have chosen
to forgo requesting a particular jury instruction presents us
with a question of law that we review based upon the post-
conviction record. Pereida-Alba v. Coursey, 356 Or 654, 663,
342 P3d 70 (2015). Here, the record includes trial counsel’s
declaration explaining that decision:
“I admit that I did not submit these special requested
instructions. I chose to rely on the uniform jury instruc-
tions given to the jury and my argument to the jury, both
of which covered the facts that mere presence at a crime
[and] acquiescence alone * * * do not constitute a crime in
themselves.”
Generally speaking, an attorney’s tactical decision
is “ ‘deserving of considerable deference.’ ” Farmer v. Premo,
363 Or 679, 690, 427 P3d 170 (2018) (quoting Lichau v.
Baldwin, 333 Or 350, 360, 39 P3d 851 (2002)). However, we
will not defer to a lawyer’s tactical decision if it reflects “an
absence or suspension of professional skill and judgment” or
it is not “grounded on a reasonable investigation.” Farmer,
363 Or at 690 (internal quotation marks omitted). Thus, we
must determine whether trial counsel made a reasonable
Cite as 305 Or App 466 (2020) 475
tactical decision warranting deference when, rather than
requesting special jury instructions, he chose to rely on the
uniform instructions and argument to inform the jury on
the law.
In this case, the post-conviction court’s explana-
tion of its ruling, 305 Or App at 471-72, suggests that the
court accepted trial counsel’s rationale for his decision.
True, the post-conviction court agreed with petitioner’s con-
tention that, had trial counsel requested the special jury
instructions at issue, the trial court would have given them
to the jury because they correctly stated the law. The post-
conviction court concluded, however, that “they were not
necessary.” As a result, the post-conviction court ultimately
concluded that trial counsel’s performance was not inade-
quate and that petitioner had not been prejudiced by coun-
sel’s failure to request the jury instructions. As noted, the
superintendent questions the post-conviction court’s con-
clusion that the special jury instructions were appropriate,
but agrees that they were unnecessary and that petitioner,
therefore, was not prejudiced by their omission. We turn to
those issues.
“As a general matter, a party is entitled to a jury
instruction on its theory of the case if the requested instruc-
tion correctly states the law, is based on the operative plead-
ings, and is supported by the evidence.” Ossanna v. Nike,
Inc., 365 Or 196, 212, 445 P3d 281 (2019) (citing Hernandez
v. Barbo Machinery Co., 327 Or 99, 106, 957 P2d 147 (1998)).
However, there are qualifications to that rule, some of which
apply here. First, a party is not entitled to a requested
instruction if the given instructions “adequately address[ ]
the issue.” Ossanna, 365 Or at 213 (internal quotation
marks omitted); see also State v. Tucker, 315 Or 321, 332,
845 P2d 904 (1993) (“It is not error for a trial court to refuse
to give a requested instruction if the instruction given by
the court, although not in the form requested, adequately
covers the subject of the requested instruction.”). Second, a
“court is not required to also provide negative or converse
instructions,” that is, instructions “describing in what cir-
cumstances an element might not be established.” State v.
Roberts, 293 Or App 340, 346, 427 P3d 1130 (2018) (internal
476 Torres v. Persson
quotation marks omitted; emphasis added); see also Martini
v. Beaverton Ins. Agency, Inc., 314 Or 200, 213, 838 P2d 1061(1992) (“[I]f a jury is correctly instructed on those elements
that it must find in order to reach an affirmative conclusion,
a court need not go further and submit the opposing side’s
version of various circumstances that would not suffice to
reach the disputed conclusion.” (Emphasis in original; inter-
nal quotation marks omitted.)). Finally, instructions “ ‘rea-
sonably capable of confusing or misleading the jury should
be avoided.’ ” Roberts, 293 Or App at 346 (quoting Williams
et al. v. Portland Gen. Elec., 195 Or 597, 610, 247 P2d 494(1952)).
Unsurprisingly, petitioner’s argument on appeal
embraces the post-conviction court’s preliminary conclusion
that she would have been entitled to both of the special jury
instructions if counsel had requested them. Contrary to the
court’s ultimate conclusion, however, petitioner maintains
that counsel was inadequate in failing to request those
instructions, because they would have directly supported
counsel’s trial strategy. The superintendent, in turn, char-
acterizes petitioner’s special jury instructions as selectively
chosen quotes pulled from appellate-court decisions, which
the trial court was under no obligation to give. The super-
intendent concludes, therefore, that the failure to request
the instructions cannot have rendered trial counsel’s perfor-
mance constitutionally inadequate.
As the superintendent correctly points out, the
Supreme Court has cautioned trial courts that not “every
quote from every opinion should become a required jury
instruction.” State v. Nefstad, 309 Or 523, 551, 789 P2d 1326(1990). In Nefstad, the state introduced evidence of various
false statements that the defendant had made to investi-
gating officers; those statements, the prosecution argued at
trial, demonstrated the defendant’s “consciousness of guilt.”
Id. at 550. In response, the defendant requested the follow-
ing special jury instruction:
“Evidence of false explanations by defendant is admis-
sible to show consciousness of guilt. Consciousness of guilt,
however, does not constitute affirmative proof as to how the
crime was committed or defendant’s participation therein.”
Cite as 305 Or App 466 (2020) 477
Id. In support of his requested special jury instruction, the
defendant in Nefstad had cited our decision in State v. Voit/
Strong, 12 Or App 520, 532-33, 506 P2d 734 (1973), which,
as the Supreme Court noted, did not address jury instruc-
tions; rather, the issue in Voit/Strong was the sufficiency
of the evidence. Nefstad, 309 Or at 551 n 16. Although the
Supreme Court acknowledged that the proposed special
jury instruction accurately paraphrased our opinion in Voit/
Strong, it held that the trial court had not erred in declining
to give the requested instruction. Id. at 551.
The Nefstad court explained its reasoning as follows:
“Defendant Nefstad’s instruction deals with the infer-
ences that, in defendant’s view, may or may not be drawn
from his lies. Yet this court has emphasized that ‘[i]t is the
task of the advocate, not the judge, to comment on infer-
ences. * * * Inferences when used against the defendant [in
a criminal case] should be left to argument without any
instruction.’ State v. Rainey, 298 Or 459, 467, 693 P2d 635(1985). In this case, because the parties fully presented
their differing interpretations of defendant Nefstad’s false-
hoods to the jury, no instruction was required.”
Id. at 551-52 (brackets and ellipses in original; footnote
omitted). In other words, although the requested instruction
correctly identified inferences that the jury could permis-
sibly draw, that issue was most appropriate for argument,
not instruction, because it did not present a matter of law
requiring an explanation from the court. Id. at 551-52 (“The
trial court’s obligation, in instructing the jurors, is to ‘state
to them all matters of law necessary for their information
in giving their verdict.’ ORCP 59 B.”). The point of Nefstad,
therefore, is not that proper jury instructions cannot be
gleaned from applicable case law, as the superintendent’s
argument here could be read to suggest. Rather, the lasting
significance of that decision is that it draws a line between
issues of law, on which jurors must be instructed, and issues
of fact, a matter better left to advocacy.
Indeed, the Supreme Court’s recent decision in
Ossanna emphasizes that a party may, in an appropriate
case, be entitled to a requested instruction reflecting a prin-
ciple of law drawn from relevant appellate decisions. 365
478 Torres v. Persson
Or at 218; see also Bray v. American Property Management
Corp., 164 Or App 134, 142-43, 988 P2d 933 (1999), rev den,
330 Or 331 (2000) (holding that it was not error for trial
court to give jury technically correct instruction on vicarious
liability—one that was unlikely to have created an errone-
ous perception of the law—even though instruction was not
a “model of clarity” and was a simple “cut-and-paste meld-
ing” of language pulled from multiple decisions; noting that
instruction “exemplifie[d] the caveat that ‘[a]n instruction
that accurately quotes or faithfully paraphrases an appel-
late decision is not necessarily beyond reproach.’ Rogers
v. Meridian Park Hospital, 307 Or 612, 616, 7[72] P2d 929
(1989)” (first and third brackets added).). Thus, to the extent
that the superintendent suggests that trial counsel could
never be faulted for failing to seek appropriate instructions
drawn from the case law, we disagree. Cf. Krummacher v.
Gierloff, 290 Or 867, 875, 627 P2d 458 (1981) (“[C]ounsel
must investigate the facts and prepare himself on the law
to the extent appropriate to the nature and complexity of
the case so that he is equipped to advise his client, exercise
professional judgment and represent the defendant in an
informed manner.”).
We turn, therefore, to whether the special jury
instructions in this case were correct statements of the law
that the trial court would have been required to give if peti-
tioner’s trial counsel had requested them. We begin with
the suggested “mere presence” instruction, specifically, that
“mere presence at a crime is insufficient to establish aiding
and abetting.” As we will explain, our review of the case law
suggests that, although petitioner’s suggested instruction
may correctly state the law, the trial court may nonethe-
less have been under no obligation to read it upon counsel’s
request.
For example, in State v. Jackson, the defendant
had driven another suspect away from the scene of a rob-
bery that the other man had single-handedly carried out.
64 Or App 667, 669, 669 P2d 826 (1983). On appeal of the
defendant’s resulting conviction for first-degree robbery, he
argued that the trial court had erred when it declined his
request to have the jury instructed that “ ‘mere presence at
or near the scene of a crime is insufficient evidence upon
Cite as 305 Or App 466 (2020) 479
which to base a conviction.’ ” Id. at 671. We did not dispute
that the requested instruction correctly stated the applicable
law. Nonetheless, we held that, “[a]lthough the instruction
recite[d] a correct statement of a legal principle, it was prop-
erly rejected.” Id. We reasoned that, because there had been
sufficient evidence to submit the case to the jury—which
meant that the defendant’s presence at or near the crime
scene had not been the only evidence of his involvement in
the robbery—“the requested instruction would [have been]
a comment on a portion of the evidence.” Id. In reaching that
conclusion, we implicitly reasoned that, by instructing the
jury as the defendant had requested, the trial court would
have conveyed its belief that the defendant’s presence at the
robbery scene was, in fact, the only evidence of his guilt. As
a result, the significance of the defendant’s presence at or
near the scene of the crime was “a matter to be left to oral
argument rather than to instruction.” 6 Id.
Similarly, but for somewhat different reasons, the
Supreme Court in the Nefstad case discussed above held
that the trial court had not erred in declining to instruct the
jury that “ ‘[m]ere presence at the scene of a crime * * * [is]
not sufficient to establish that a defendant committed the
crime or aided and abetted the commission of the crime.’ ”
309 Or at 548. In that case, the trial court had given the
jury an aid-and-abet instruction similar to the one given in
this case.7 Id. In upholding the defendant’s conviction, the
Supreme Court reasoned that the requested instruction
would not have added anything to the jury’s understanding
of the law, because the proposed instruction “stated merely
the converse of the instructions that were given,” under
which the jury could not have convicted the defendant if he
had merely been present at the scene of the crime. Id. at 549.
6
Our precise reasoning in Jackson has no direct bearing on the merits of
petitioner’s post-conviction claim. Accordingly, we express no view as to whether
that reasoning would be controlling in other circumstances.
7
The instruction given by the trial court in Nefstad stated:
“ ‘A person aids and abets another person in the commission of a crime if the
person charged with intent to promote or make easier the commission of the
crime, encourages, procures, advises or assists by act or advice the planning
or the commission of the crime.’ ”
309 Or at 548.
480 Torres v. Persson
Finally, in State v. Williams, the Supreme Court
relied on Nefstad in upholding the trial court’s refusal to
instruct the jury that “ ‘mere presence at or near the scene
of the crime is insufficient evidence upon which to base a
conviction.’ ” 313 Or 19, 33-34, 828 P2d 1006 (1992) (brackets
omitted). As in Nefstad, the Williams court observed that
the “trial court [had] correctly instructed the jury on what
it would need to find affirmatively in order to conclude that
[the] defendant had aided and abetted in the crimes,” and
the Supreme Court endorsed the trial court’s reasoning that
the subject of “mere presence” was an issue for argument
rather than instruction. Id. at 33. Accordingly, the trial
court had not erred, despite the defendant’s assertion that
even the evidence arguably placing him at the scene of the
crime was itself only circumstantial. Id. at 34.
Given those precedents, it is far from clear that
petitioner would have been entitled to have the court give
her “mere presence” instruction to the jury, as the post-
conviction court seems to have understood. We need not
decide that issue, however, because we conclude that, in
light of the existing case law, not all defense counsel exercis-
ing reasonable professional skill and judgment would have
requested a “mere presence” instruction. As petitioner’s
trial attorney explained in a declaration submitted to the
post-conviction court, he “chose to rely on the uniform jury
instructions given to the jury” and his own closing argu-
ment, “both of which covered the facts that mere presence
at a crime [and] acquiescence alone * * * do not constitute a
crime in themselves.” Given the Supreme Court’s reliance
on much the same reasoning in decisions considering sim-
ilar “mere presence” instructions, we cannot conclude that
it was an unreasonable tactical decision for trial counsel to
forgo requesting one here. Additionally, given that both we
and the Supreme Court have held under comparable cir-
cumstances that a defendant is not entitled to an instruc-
tion of the sort at issue here, we cannot conclude that all
reasonable counsel would nonetheless have requested one.
For each of those reasons, petitioner has not established
that her trial attorney provided inadequate counsel by not
requesting a “mere presence” instruction, and, accordingly,
we reject petitioner’s third assignment of error.
Cite as 305 Or App 466 (2020) 481
In light of that conclusion, petitioner’s fourth assign-
ment of error requires relatively little discussion. As with
her third assignment of error, petitioner’s fourth assign-
ment concerns trial counsel’s failure to request a special
jury instruction, specifically, one stating that acquiescence
to a crime is, without more, insufficient to support a convic-
tion for that crime. Although the case law discussing jury
instructions regarding “acquiescence” (as opposed to “mere
presence”) is limited, the case law that exists appears to
treat the two much the same. Moreover, petitioner offers no
substantial argument as to why the two are distinguishable
here. Thus, as, briefly discussed below, we decide petitioner’s
fourth assignment of error on the same basis as we decided
her third assignment of error.
Most notably, in Nefstad, the Supreme Court upheld
a trial court’s refusal to instruct the jury that “ ‘the fact
that a defendant acquiesced in the criminal acts of another
and wished those criminal acts to succeed is not sufficient
to make the defendant an aider and abettor or principal or
co-conspirator in the crime.’ ” 309 Or at 547. In rejecting
the defendant’s argument that the proposed “acquiescence”
instruction was required even though the trial court had
accurately instructed the jury regarding aid-and-abet lia-
bility, the Supreme Court relied on the same rationale that
led to its decision that the defendant was not entitled to a
“mere presence” instruction. Id. at 549. Indeed, the court
provided a single explanation—namely, that the defendant’s
requested instructions were “merely the converse of the
instructions that were given” and involved matters better
left to argument—before rejecting all three of the defen-
dant’s jury instruction arguments. Id. at 549-50 (holding,
for that reason, that the trial court had not erred in reject-
ing the defendant’s proposed instructions regarding “mere
knowledge or acquiescence,” “mere presence,” and “mere
association”).8
8
We recognize that, in Nefstad, the Supreme Court noted that the defendant
had focused his argument on the “presence” and “association” instructions, and,
as a result, the court focused its own discussion on those concepts. 309 Or at
549-50. We see no indication, however, that the court relied on a distinct ratio-
nale when it disposed of the defendant’s “acquiescence” argument in the same
sentence as his other two. See id.482 Torres v. Persson
Much like the Supreme Court in Nefstad, we see
no material difference between the two jury instructions
at issue in petitioner’s third and fourth assignments of
error, even in the unique context of post-conviction relief.
That is, for the same reasons that trial counsel reasonably
could view the special jury instruction regarding a person’s
mere presence as unnecessary or unlikely to be given by
the trial court, counsel was justified in viewing an acqui-
escence instruction the same way. In reaching that conclu-
sion, we note that our own case law has, in the context of
aid-and-abet liability, treated “presence” and “acquiescence”
as closely related concepts. For example, at the time of peti-
tioner’s trial, we had repeatedly stated that “[a]lthough ‘the
least degree of concert or collusion between accomplices suf-
fices’ to establish culpability as an aider or abettor, mere
presence or acquiescence alone are not sufficient.” State v.
Burgess, 240 Or App 641, 650, 251 P3d 765 (2011), aff’d, 352
Or 499, 287 P3d 1093 (2012) (quoting State ex rel Juv. Dept. v.
Holloway, 102 Or App 553, 557, 795 P2d 589 (1990)); see also
State v. Lavadores, 230 Or App 163, 171, 214 P3d 86 (2009)
(also relying on Holloway); State v. Anlauf, 164 Or App 672,
674, 995 P2d 547 (2000) (same); State v. Schrag, 21 Or App
655, 658, 536 P2d 461 (1975) (both mere presence at a crime
scene and acquiescence to the actions of another are insuf-
ficient to constitute aiding and abetting). Given the regu-
larity with which we (and the Supreme Court) have treated
“mere presence” and “acquiescence” as analytically similar
concepts, we see no reason to view trial counsel’s similar
handling of the related jury instructions as unreasonable.
And, therefore, for the same reasons that we rejected peti-
tioner’s third assignment of error, we also reject her fourth.
Because petitioner has not met her burden of estab-
lishing that counsel’s performance was deficient, we need
not reach the prejudice prong of our analysis. And, as a
result, we affirm the post-conviction court’s judgment.
Affirmed.