Richards v. Brown

No. 1035 December 3, 2025 321

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

LOUISE MAY RICHARDS,

Petitioner-Appellant,

v.

Nichole BROWN,

Superintendent,

Coffee Creek Correctional Facility,

Defendant-Respondent.

Washington County Circuit Court

22CV12804; A180691

Patricia A. Sullivan, Senior Judge.

Argued and submitted September 24, 2024.

Andy Simrin argued the cause for appellant. Also on the

brief was Andy Simrin PC.

Rebecca M. Auten, 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, Egan, Judge, and Joyce,

Judge.

EGAN, J.

Affirmed.

322 Richards v. Brown

EGAN, J.

Petitioner appeals a judgment denying her petition

for post-conviction relief from a jury conviction for second-

degree murder, ORS 163.115(1)(a). Petitioner contends that

the post-conviction court erred by denying her inadequate-

assistance-of-counsel claim, in which she argued that counsel

was inadequate for failing (1) to ask the court to instruct the

jury that at least 10 of the 12 jurors had to concur before the

jury could reject petitioner’s affirmative defense of extreme

emotional disturbance (EED); (2) to object when instead the

court instructed the jury that any vote of less than 10-2 in

favor of the EED defense constituted a rejection of that defense;

and (3) to object to the trial court receiving a 9-3 rejection

of the EED defense as part of the verdict. See ORS 163.115

(1)(a) (setting forth EED as an affirmative defense to murder

in the second degree); ORS 163.118(1)(b) (intentional crim-

inal homicide constitutes first-degree manslaughter when

committed under EED); ORS 163.135(1) (describing the affir-

mative defense of EED). The post-conviction court rejected

those three arguments, in large part, because it concluded

that that there was no minimum concurrence requirement

for rejecting an EED defense, but also because it concluded

that petitioner failed to show that the failure to take those

actions resulted in constitutionally deficient representation.

We conclude that the post-conviction court’s understanding

of the law with regard to jury concurrence was erroneous;

however, we conclude that it did not err in denying petitioners

claims because petitioner failed to establish that trial coun-

sel was constitutionally deficient. We affirm.

BACKGROUND

Petitioner shot and killed her husband in 2017. She

was initially charged with murder and later, after a change

in the law, with second-degree murder, ORS 163.115(1)(a).

Petitioner never disputed that she killed her husband, but

she contended that she did so while under the influence of

an EED. See ORS 163.135(1) (providing that EED is an affir-

mative defense to second-degree murder). If she were to pre-

vail on that defense, the intentional killing of her husband

would amount to first-degree manslaughter rather than

second-degree murder. ORS 163.118(1)(b).

Cite as 345 Or App 321 (2025) 323

During petitioner’s criminal trial, the trial court

instructed the jury that, to find petitioner guilty of murder,

“each and every juror must agree on the verdict of guilty.

* * * So if [it] find defendant guilty of murder, all 12 [had] to

agree on that.” Next, the trial court instructed the jury that,

if the jury unanimously found petitioner guilty of murder,

it would need to answer whether petitioner acted under the

influence of an EED. The trial court explained that, for peti-

tioner’s affirmative defense to succeed, “at least 10 [jurors

had to] agree that [petitioner proved] by a preponderance

of the evidence that she [acted] under the influence of [an

EED] at the time of the murder.” The court did not instruct

the jury as to any concurrence requirement for rejecting the

affirmative defense. Trial counsel did not object to the court’s

instructions and did not request any alternative instructions

regarding jury concurrence for the EED affirmative defense.

Ultimately, the jury unanimously found petitioner

guilty of second-degree murder and voted 9-3 against the

affirmative defense of EED. That is, only three jurors found

that petitioner had proved her EED defense. Trial counsel

did not object to the validity of the jury’s verdict nor to the

court’s acceptance of it. The trial court entered a conviction

for second-degree murder.1

In her petition for post-conviction relief, petitioner

alleged that counsel was constitutionally ineffective, under

both the state and federal constitutions, for failing to request

a special EED concurrence instruction, to object to the jury

instructions given, and to object to the validity of the ver-

dict. The legal premise underlying those allegations is that

ORS 136.450 (2019), amended by Or Laws 2021, ch 478, § 11,

required at least 10 jurors to concur on the rejection of the

EED defense because it provides, “The verdict of a trial jury

in a criminal action shall be by concurrence of at least 10 of

12 jurors.”2

1

On direct appeal, in an unpreserved claim of error, petitioner argued that

the trial court plainly erred by instructing the jury as it did with regard to jury

concurrence and the EED defense. We affirmed without an opinion in Case No.

A173238 on June 16, 2021, and entered judgment on August 4, 2021.

2

Below and on appeal, petitioner relied on the 1997 version of ORS 136.450

because that was the version in effect when she committed her crime. But the

2019 amendments to that statute applied to crimes sentenced after November

2019. Or Laws 2019, ch 635, § 30. We rely on the 2019 statute because petitioner

324 Richards v. Brown

The post-conviction court denied relief, concluding

that petitioner’s legal premise was wrong and that she had

failed to demonstrate deficient performance:

“[PCR] COURT: Petitioner’s position is not legally cor-

rect, and the instruction and process used by the Trial Court

was legally sound. Any objection would have been denied by

the Trial Court. Plaintiff has not shown that all other attor-

neys would have objected on that basis, particularly as this

presents as novel argument, and the procedure used [by] the

Trial Court is generally used throughout the state.”

On appeal, petitioner renews her state and federal

ineffective-assistance-of-counsel arguments. In response, the

superintendent argues that the trial court correctly denied

relief on petitioner’s claim because, although a concurrence

of 10 jurors is necessary to accept an EED claim, it is not

needed to reject it. Alternatively, she argues that, regard-

less of whether 10 jurors needed to concur in rejecting the

EED defense, the post-conviction court properly concluded

that petitioner failed to establish that trial counsel rendered

deficient performance in failing to make that argument.

STANDARD OF REVIEW

We review a judgment denying post-conviction relief

for legal error and are bound by the post-conviction court’s

factual findings to the extent that they are supported by the

evidentiary record. Evans v. Nooth, 368 Or 159, 165, 487 P3d

42 (2021) (citing Green v. Franke, 357 Or 301, 312, 350 P3d

188 (2015)).

ANALYSIS

To prevail on a claim of ineffective assistance

of counsel under Article I, section 11, of the Oregon

Constitution,3 a petitioner must: (1) show that counsel failed

to exercise “reasonable professional skill and judgment”

and (2) demonstrate that the petitioner was prejudiced as a

result. Montez v. Czerniak, 355 Or 1, 7-8, 322 P3d 487, adh’d

to as modified on recons, 355 Or 598 (2014). The test for a

was sentenced in December 2019. Regardless, our decision would be the same

under either version of the statute.

3

Article I, section 11, provides in relevant part, “In all criminal prosecu-

tions, the accused shall have the right * * * to be heard by himself and counsel[.]”

Cite as 345 Or App 321 (2025) 325

federal ineffective-assistance-of-counsel claim raised under

the Sixth Amendment to the United States Constitution4 is

functionally identical. Id.

To determine whether trial counsel exercised “rea-

sonable professional skill and judgment” in his handling of

the jury concurrence needed for the EED defense, we must

first decide whether a jury can validly reject an EED defense

with less than 10 jurors concurring. Only if petitioner is cor-

rect and 10 jurors must concur in rejecting that defense do

we need to address whether trial counsel exercised reason-

able professional skill and judgment by failing to take one of

the three actions identified in the petition for post-conviction

relief.

A. The jury concurrence requirement for rejecting the EED

defense

At the time of petitioner’s trial, ORS 136.450 (2019)

provided that “[t]he verdict of a trial jury in a criminal

action shall be by concurrence of at least 10 of 12 jurors.”

(Emphasis added.) Relying on that statute, petitioner con-

tends that 10 jurors needed to concur in rejecting her EED

defense because that decision constitutes a “verdict.” The

superintendent argues that the jury’s rejection of the EED

defense was not a “verdict” and, thus, did not need to meet

the concurrence requirement of ORS 136.450 (2019). Because

the parties’ dispute centers on the meaning of “verdict,” we

apply our standard methodology for statutory construction,

evaluating the statute’s text, context, and legislative history

to determine the legislature’s intent. State v. Gaines, 346 Or

160, 171-72, 206 P3d 1042 (2009).

We begin with the text. Where the legislature does

not define a statutory term, we presume that the legislature

intended it to carry its common and ordinary meaning. Id.

at 175. Where the legislature employs a legal term of art in

a statute, we look to its “established legal meaning” in legal

dictionaries. State v. Amoroso, 336 Or App 732, 737, 562 P3d

641 (2024) (citing Comcast Corp. v. Dept. of Rev., 356 Or 282,

296, 337 P3d 768 (2014)). As relevant here, the plain and

4

The Sixth Amendment, made applicable to the states by the Fourteenth

Amendment, provides, in relevant part, “In all criminal prosecutions, the accused

shall enjoy the right * * * to have the Assistance of Counsel for his defen[s]e.”

326 Richards v. Brown

ordinary meaning of the term “verdict” is simply a jury’s

factual finding or decision on a question submitted to them:

“1: the answer of a jury given to a court concerning a

matter of fact in a civil or criminal cause committed to

their examination and determination : the finding or deci-

sion of a jury on the matter legally submitted to them in

the course of the trial of a cause that ordinarily in civil

actions is for the plaintiff or for the defendant and in crim-

inal actions guilty or not guilty * * *.”

Webster’s Third New Int’l Dictionary 2543 (unabridged ed

2002). Similarly, Black’s Law Dictionary defines it as “[a]

jury’s finding or decision on the factual issues of a case.”

Black’s Law Dictionary 15c (12th ed 2024). Whether using

its ordinary or legal meaning, the definition of the term

“verdict” is certainly broad enough to encompass a jury’s

decision on the question of the EED defense.

The context of ORS 136.450 (2019) provides much

greater assistance in identifying the legislature’s intent. The

context establishes that the legislature understood the jury’s

decision on an affirmative defense to be but one component

of its overall general verdict of guilty or not guilty on the

offense itself. In other words, just as a certain number of

jurors must concur on each element of a crime in order to

reach a general verdict of guilty or not guilty, see, e.g., State

v. Phillips, 354 Or 598, 606, 317 P3d 236 (2013) (“[J]ury con-

currence is required for each legislatively defined element

necessary to impose criminal liability.”), so must they con-

cur on the acceptance or rejection of an affirmative defense

in order to reach a general verdict of guilty or not guilty.

For it is only by concurring on each element of the crime, on

each defense, and on each affirmative defense that a jury can

return a valid general verdict at all.

We start with ORS 136.455, which provides, “A

general verdict upon a plea of not guilty is either ‘guilty,’

of an offense charged in the accusatory instrument, or ‘not

guilty.’ ” Next, ORS 136.485 provides,

“If the jury finds a verdict which is not a general verdict,

the court may, with proper instructions as to the law, direct

the jury to reconsider it; and the verdict cannot be received

until it is given in some form from which it can be clearly

Cite as 345 Or App 321 (2025) 327

understood that the intent of the jury is to render a general

verdict.”

Relying on those two statutes, we have previously explained

that, although “there [a]re three potential types of verdict

forms, the general verdict, the special verdict, and the gen-

eral verdict with interrogatories,” in Oregon criminal cases,

“the special verdict is statutorily prohibited.” State v. Payne,

298 Or App 411, 423, 427, 447 P3d 515 (2019).

A general verdict is one in which the jury simply

renders its decision on the “ultimate issue of guilt[ ].” Id. at

423 (quoting ORCP 61 A). By contrast, in a special verdict,

the jury does not return a verdict of “guilty” or “not guilty.”

Instead, the jury resolves the factual disputes at issue in

the case, and the judge applies the law to those findings.

Id. at 425. Again, special verdicts are generally prohibited

in criminal cases,5 and typically, the only lawful verdict on

a criminal charge is “guilty” or “not guilty.”6 ORS 136.455.

The upshot is this: If the only option in a criminal case is a

general verdict of guilty or not guilty on the offense itself,

then the jury’s decision on an affirmative defense must

function merely as a component of that general verdict. If,

instead, a jury’s factual findings on an affirmative defense

were a separate question that the jury needed to answer

separately in addition to its general verdict on the offense,

then the trial court would be in a position of applying the

law to that finding and either overriding a general verdict of

guilty (because the affirmative defense applied) or receiving

the guilty verdict (because it did not). In that scenario, the

jury’s finding on the affirmative defense would constitute a

5

To the extent that the parties or the court wants jurors to explicitly state

their factual findings on a verdict form to ensure that their general verdict is

lawful, there is the option of a general verdict with interrogatories. When using

interrogatories, the jury still renders an ultimate verdict of either “guilty” or

“not guilty,” but it also answers questions that explain that verdict. Payne, 298

Or App at 426. The court can then check the verdict against the interrogatories

to ensure that the verdict follows correctly from the factual findings made in the

interrogatories. Id.

6

There are some explicit exceptions to the general prohibition on special ver-

dicts in criminal cases. See ORS 136.785(1) (“When an enhancement fact is tried

to a jury, any question relating to the enhancement fact shall be submitted to the

jury.”); ORS 132.557(2) (“The state must prove each subcategory fact beyond a

reasonable doubt and the jury shall return a special verdict of ‘yes’ or ‘no’ on each

subcategory fact submitted.”). No such exception exists for affirmative defenses.

328 Richards v. Brown

prohibited special verdict. No such problem exists if a jury’s

finding on an affirmative defense is simply a component of

or prerequisite to its general verdict on the offense itself,

such that finding that an affirmative defense applies simply

results in a not guilty verdict and vice versa. In that way, it

operates identically to the way general defenses are treated

on a routine basis. For example, where self-defense is raised,

a trial court cannot accept a guilty verdict if six jurors find

that the state failed to disprove that defense and six jurors

find that it did—the general guilty verdict would be valid

only if the requisite number of jurors concur that the state

disproved that defense.

It bears emphasis that, even though EED is only

a partial defense, it is still an affirmative defense. Proving

it renders a defendant not guilty of second-degree murder

and guilty, instead, of first-degree manslaughter. An EED

finding quite literally precludes a guilty verdict on second-

degree murder. Therefore, under ORS 136.450 (2019), just as

ten jurors had to concur on the elements in order to render

a guilty verdict for second-degree murder, ten jurors had to

concur that petitioner had not proven her affirmative defense.

Another useful clue from statutory context is

that there is no statute that expressly addresses jury con-

currence with regard to affirmative defenses in criminal

cases. That is, there is no statute, other than ORS 136.450

(2019), specifying how many jurors must concur to accept

an affirmative defense or to reject it. On the one hand, if

the EED defense is part of the “verdict,” as contemplated

by ORS 136.450 (2019), then the legislature provided how

many votes were necessary to accept or reject the defense.

However, if, as the superintendent argues, a jury’s decision

on an affirmative defense is not a “verdict” or a component of

a “verdict” within the meaning of ORS 136.450 (2019), then

no statute governs the jury’s vote on an affirmative defense.

That absence would seem to be an unlikely legislative choice

because, if the legislature has not specified the required

number of votes, then what is to say that an affirmative

defense is not proven by the vote of three jurors? From the

legislature’s omission of another statute on the issue of jury

concurrence for affirmative defenses, we can infer that the

Cite as 345 Or App 321 (2025) 329

legislature understood a jury’s decision on an affirmative

defense to be a component of the general verdict.

Finally, we have been presented with no legislative

history relevant to the issue before us, nor are we aware of

any.

To summarize, the greater context of ORS 136.450

(2019) shows that the legislature understood a jury’s find-

ing on an affirmative defense to be a component of the “ver-

dict” referred to in that statute, requiring at least a 10-jury

concurrence. As illustrated more concretely in this case, the

jury could not have arrived at a general verdict of guilty

for second-degree murder without first deciding whether

petitioner had proven her EED defense, because if she had

proven the defense the jury would have been precluded from

returning a guilty verdict for that crime. Thus, it would

have needed to return a not guilty verdict for second-degree

murder and a guilty verdict for first-degree manslaughter.7

That conclusion appears to be in tension with some of the

discussion in our recent decision in State v. Wayman, 339 Or

App 9, 20, 568 P3d 232, rev allowed, 374 Or 372 (2025). Yet,

in that case, we were not presented with the argument that

we face here and, further, we do not understand our holding

here to disturb our holding in Wayman.

In Wayman, the defendant assigned error to the

rejection of a special jury instruction about EED and a

proposed special verdict form, each of which informed the

jury that it could reject his EED defense only if all jurors

concurred. 339 Or App at 11. The jury unanimously found

the defendant guilty of second-degree murder, and then, by

a 10-2 concurrence, it rejected the EED defense. Id. As a

7

That is not to suggest that, in this context, first-degree manslaughter is a

lesser included offense of second-degree murder—it is not, given that first-degree

manslaughter contains an element that second-degree murder does not (i.e., the

existence of an EED). See State v. Hernandez, 340 Or App 704, 705-06, 572 P3d 1057

(2025) (citing State v. Chapman, 209 Or App 771, 777, 149 P3d 284 (2006), rev den,

342 Or 473 (2007) (“A lesser-included offense is one that meets either of two tests:

(1) that one offense is necessarily included in the other, by virtue of the elements of

the former being subsumed in the latter; or (2) that the facts alleged in the indict-

ment expressly include conduct that describes the elements of the lesser included

offense.” (Internal quotation marks omitted.)). It simply recognizes the logical real-

ity that an acquittal for second-degree murder based solely on the existence of an

EED necessarily satisfies that additional element in first-degree manslaughter.

330 Richards v. Brown

result, the trial court entered a judgment of conviction for

second-degree murder. Id.

On appeal, the defendant argued that the second-

degree murder statute and the federal constitution required

juror unanimity to reject the EED defense. Id. at 14. We

disagreed. In reaching our decision, we engaged in a statu-

tory construction of the second-degree murder statute (ORS

163.115(1)) to determine whether that statute established

the legislature’s intent with regard to the jury concurrence

on the rejection of the EED defense. Id. at 15-16. We con-

cluded that the statutory text of the second-degree murder

statute did not answer the question expressly, id. at 17, and

that the legislative history revealed the legislature’s desire

to shift the burden to prove EED to the defendant, id. at 18.

We concluded that requiring all jurors to concur in reject-

ing the EED defense ran counter that that legislative intent

to shift the burden of proving EED to the defendant. Id. We

also rejected the defendant’s constitutional argument that

the federal constitution required unanimity to reject the

EED defense. Id. at 19. Based on our rejection of the defen-

dant’s arguments about the second-degree murder statute

and the federal constitution, we concluded that juror una-

nimity was not required to reject the EED defense. Id. at

20.

However, in Wayman, we were not presented with

any argument about ORS 136.450, and, consequently, we did

not address its potential effect on the number of votes nec-

essary for the jury to reject an affirmative defense. The only

reference to that statute appears in a parallel citation, and

the citation includes a footnote specifying that “[the] defen-

dant does not separately challenge the trial court’s instruc-

tion and the verdict form’s statement that ten of twelve

jurors must agree that defendant had established EED.” In

other words, the defendant in Wayman was not pointing at

ORS 136.450 and arguing that it supplied the answer for

how many jurors had to concur on the rejection of the EED

defense. Of course, that is precisely the argument we are

faced with here. We thus understand Wayman to answer

the question of whether the criminal-homicide statutes, the

EED statute, or the federal constitution require jurors to

Cite as 345 Or App 321 (2025) 331

unanimously reject the EED defense. There, we answered

no. We do not disturb that conclusion here. Here, we reach

our decision solely under ORS 136.450 (2019).8

Returning to the case before us, we summarize our

holding. At the time of petitioner’s trial, ORS 136.450 (2019)

required at least 10 jurors to concur on a criminal verdict.

That means that 10 jurors had to concur as to each factual

prerequisite to guilt for the offense of second-degree mur-

der, including that defendant had not proven her defense of

EED. Therefore, the post-conviction court was incorrect in

concluding that there was no jury concurrence requirement

for rejecting the EED defense.

B. Did counsel exercise reasonable professional skill and

judgment?

Having decided that petitioner is correct that ORS

136.450 (2019) required 10 jurors to concur in rejecting her

EED defense, we must now address whether trial counsel

rendered constitutionally deficient performance in not mak-

ing that argument at trial. To show that counsel performed

deficiently, “it is not enough to show ‘that another lawyer

would have tried the case differently’ or ‘that a reviewing

court would disagree with that counsel’s decision.’ ” Antoine

v. Taylor, 368 Or 760, 768, 499 P3d 48 (2021) (quoting

Krummacher v. Gierloff, 290 Or 867, 881, 627 P2d 458 (1981)).

Instead, a petitioner must show that “counsel’s actions or

inaction reflected an absence of ‘professional skill and judg-

ment.’ ” Antoine, 368 Or at 768 (quoting Krummacher, 290

Or at 875-76). When a petitioner argues that an attorney

was constitutionally deficient by not raising “an unsettled

legal issue,” the petitioner can prevail only if correct reso-

lution of that legal issue was clear enough that “any lawyer

exercising reasonable professional skill and judgment nec-

essarily would have seen it.’ ” Curry v. Highberger, 326 Or

App 259, 264, 531 P3d 702, rev den, 371 Or 511 (2023) (quot-

ing Jackson v. Franke, 369 Or 422, 434, 507 P3d 222 (2022)).

8

We recognize that, under the current version of ORS 136.450, it may be that

a jury must unanimously reject the EED defense to arrive at a general guilty

verdict in a second-degree murder case. ORS 136.450(1) (“(1) A jury in a criminal

action may render a verdict of guilty only by unanimous agreement.”). However,

that issue is not before us, nor was that argument presented in Wayman.

332 Richards v. Brown

The post-conviction court concluded that petitioner

had “not shown that all other attorneys would have objected”

on the grounds she asserts, “particularly as this presents a

novel argument, and the procedure used [by] the Trial Court

[was] generally used throughout the state.” Again, we review

for legal error, accepting the post-conviction court’s factual

findings if they are supported by the record. Walraven v.

Premo, 277 Or App 264, 279, 372 P3d 1 (2016).

Petitioner argues that statutory law at the time

of petitioner’s trial was sufficiently clear that any reason-

able defense attorney should have known that ORS 136.450

(2019) required 10 jurors to concur on the rejection of an

affirmative defense. First, she argues that our holding in

State v. Reese, 156 Or App 406, 410, 967 P2d 514 (1998), was

sufficient to notify reasonable counsel of the concurrence

requirement. There, we held that an earlier version of ORS

136.450 required a jury to be unanimous in finding a defen-

dant guilty except for insanity. Second, she argues that

“[t]here is nothing in the text of ORS 136.450 that suggests

that a verdict rejecting an affirmative defense has a differ-

ent concurrence requirement than a verdict finding in favor

of the affirmative defense.” But, importantly, she points to

no evidence in the record to suggest that, at the time of trial,

criminal defense attorneys were making the concurrence

argument that she advances here.

Meanwhile, the superintendent argues that the

state of the law was not sufficiently clear at the time of trial

that any lawyer exercising reasonable professional skill and

judgment necessarily would have seen the problem with the

court’s instructions or the jury’s verdict. She argues that the

record supports the post-conviction court’s factual finding

that petitioner’s argument is a “novel argument” that ran

contrary to the “procedure * * * generally used throughout

the state.” That evidentiary support was supplied by trial

counsel’s assertion that he had made himself aware of the

state of the law at the time of trial and believed that there

was no minimum concurrence required to reject the EED

defense. He further stated that he had never heard of any

other defense attorneys arguing about jury concurrence to

reject the EED defense. The superintendent also offered

Cite as 345 Or App 321 (2025) 333

evidence from other contemporary trials involving the EED

defense, which demonstrated that trial courts were routinely

providing materially identical jury instructions regarding

EED as were given in petitioner’s case.

We find the superintendent’s argument more per-

suasive. First, we disagree with petitioner that our holding

in Reese was sufficient to alert a reasonable defense attorney

about the concurrence requirement for rejecting an affirma-

tive defense. That is because Reese made clear that it viewed

a guilty-except-for-insanity (GEI) defense as resulting in a

guilty verdict. 156 Or App at 410. We explained, “The only

difference between a ‘guilty’ verdict and a ‘guilty except for

insanity’ verdict is the dispositional alternatives, including

possible confinement and supervision by the Psychiatric

Security Review Board.” Id. So, although Reese is in line

with our view of how ORS 136.450 operates, because our

focus and reasoning in Reese turned so heavily on the fact

that the GEI defense results only in a different type of guilty

verdict for the same offense, we are not convinced that it

made the state of the law with regard to jury concurrence in

rejecting an affirmative defense sufficiently clear to say that

trial counsel was constitutionally inadequate for failing to

make the argument petitioner relies on here.

Petitioner’s best argument is the fact that there is no

other statute that addresses jury concurrence with regards

to affirmative defenses and that ORS 136.450 (2019) makes

no differentiation between a jury accepting or rejecting an

affirmative defense. Indeed, as is evident from our discus-

sion above, we find that argument compelling and persua-

sive. But we ultimately weigh it against the post-conviction

court’s factual findings, which are supported by evidence in

the record. As the post-conviction court found, trial courts

at the time of petitioner’s trial were routinely instructing

juries that they needed only to concur in accepting an affir-

mative defense, and criminal defense attorneys were not

arguing otherwise. Indeed, even as recently as Wayman,

criminal defendants were not relying on ORS 136.450 to

make the argument petitioner asserts here. And, until now,

we have never squarely decided the issue.

334 Richards v. Brown

That is to say that, having now been presented with

petitioner’s argument, we are persuaded that she is correct

on the law, and, in hindsight, it seems that her argument

was clearly established by statute—ORS 136.450 (2019)

required at least 10 jurors to concur that defendant had not

proven her EED defense. But the question is not whether,

in hindsight, petitioner’s argument would have been legally

correct if it had been made. The question is whether the

state of the law was so clear at the time of trial that failure

to make the argument reflected an absence of professional

skill and judgment. Given the post-conviction court’s factual

findings and the lack of clarity in the state of the law before

this decision, we cannot say that it was. For that reason, we

conclude that the post-conviction court did not err in deny-

ing petitioner’s claims.

Affirmed.