State v. Calhoun

PEE CURIAM

The defendant was convicted upon jury trial of assault and robbery being armed with a dangerous weapon and assault with intent to commit rape. On appeal he contends that due to his trial counsel’s^① incompetence he was denied the effective assistance of counsel.

The defendant, armed with a butcher knife, entered the home of an elderly couple, robbed them and then proceeded to attempt to rape the 77-year-old incapacitated housewife. He was caught in the act. Faced with an impossible situation, defense counsel obviously did the best he could with what little he had to work with. He voluntarily introduced into evidence defendant’s past criminal record and the fact that the defendant was under the influence of various drugs which had been ingested shortly prior to the crime. He thereby attempted to show that the violence displayed by the defendant in the case at hand was out of character with his prior conduct and was due to drugs and not a permanent state of depravity. The fact that these tactics were unsuccessful does not bespeak incompetence. State v. Abel, 241 Or 465, 406 P2d 902 (1965) and Benson v. Gladden, 242 Or 132, 407 P2d 634 (1965), cert den 384 US 908, 86 S Ct 1345, 16 L Ed 2d 360 (1966).

Affirmed.

① Defendant had different counsel on trial and on appeal.