Green v. Franke

No. 20 June 4, 2015 301

IN THE SUPREME COURT OF THE

STATE OF OREGON

KYLE JAMES GREEN,

Respondent on Review,

v.

Steve FRANKE,

Superintendent,

Two Rivers Correctional Institution,

Petitioner on Review.

(CC CV110230; CA A150877; SC S062231)

En Banc

On review from the Court of Appeals.*

Argued and submitted November 3, 2014.

Ryan Kahn, Assistant Attorney General, Salem, argued

the cause and filed the briefs for petitioner on review.

With him on the briefs were Ellen F. Rosenblum, Attorney

General, and Anna M. Joyce, Solicitor General.

Jason E. Thompson, Ferder Casebeer French &

Thompson, LLP, Salem, argued the cause and filed the brief

for respondent on review.

BREWER, J.

The decision of the Court of Appeals is reversed. The

judgment of the circuit court is reversed and remanded on

petitioner’s instructional claim, and otherwise is affirmed.

______________

* Appeal from Umatilla County Circuit Court, Rick J. McCormick, Senior

Judge. 261 Or App 49, 323 P3d 321 (2014).

302 Green v. Franke

Petitioner brought this action for post-conviction relief after his criminal

trial counsel failed to request that the trial court instruct the jury that, in a trial

concerning multiple charges and multiple victims, it must consider the evidence

concerning each alleged victim separately and only as that evidence pertained

to a specific charge or charges relating to that victim. The post-conviction court

did not decide whether failing to request the limiting instruction was inadequate

assistance, but determined that petitioner was not prejudiced because, even if

the limiting instruction had been given, the result would not have been different.

The Court of Appeals reversed, holding that there was no evident downside to

requesting the limiting instruction but the upside was great—the jury would

not convict petitioner based on improper propensity inferences. Held: (1) in light

of Pereida-Alba v. Coursey, 356 Or 654, 342 P3d 70 (2015), the Court of Appeals

applied an incomplete, and therefore erroneous, standard in determining that

petitioner’s trial counsel performed inadequately by failing to request a limit-

ing instruction; (2) the case must be remanded so that the post-conviction court

can determine under the correct standard whether petitioner’s trial counsel per-

formed inadequately in failing to seek a limiting instruction; and (3) in cases

where the effect of inadequate assistance of counsel on the outcome of a jury trial

is at issue, the proper prejudice standard is whether trial counsel’s acts or omis-

sions could have tended to affect the outcome of the case.

The decision of the Court of Appeals is reversed. The judgment of the circuit

court is reversed and remanded on petitioner’s instructional claim, and other-

wise is affirmed.

Cite as 357 Or 301 (2015) 303

BREWER, J.

A jury convicted petitioner of eighteen sex offenses

involving nine victims, ages twelve through seventeen.

After an unsuccessful direct appeal, petitioner sought

post-conviction relief, alleging that his trial counsel’s per-

formance had not satisfied the minimum requirements

demanded by the Oregon and United States Constitutions.

Among other claims, petitioner alleged in his pleading that

counsel performed inadequately by failing to request an

instruction directing the jury to consider the evidence con-

cerning each alleged victim separately and only as that evi-

dence pertained to a specific charge or charges relating to

that victim. The post-conviction court entered a judgment

denying post-conviction relief.

The Court of Appeals reversed. Green v. Franke,

261 Or App 49, 323 P3d 321 (2014). It reasoned that “there

was no evident downside to requesting such an instruc-

tion; the upside, however, was plain: The jury would have

been prohibited from concluding that petitioner had com-

mitted the charged acts based on a belief that he had a

propensity to commit such acts.” Id. at 58. The Court of

Appeals further concluded that petitioner was prejudiced

by counsel’s omission because the jury was encouraged by

the prosecutor, and permitted by defense counsel’s failure

to obtain a limiting instruction, to rely on impermissible

propensity inferences in its consideration of most of the

charges. Id. at 67-68. We allowed the state’s petition for

review to consider the recurring issues of what a post-

conviction petitioner must show to establish inadequate

performance of counsel and what a petitioner must prove

to establish that counsel’s inadequate performance preju-

diced the petitioner’s case. We now reverse the decision of

the Court of Appeals, and we reverse and remand the judg-

ment of the post-conviction court denying post-conviction

relief on petitioner’s instructional claim while otherwise

affirming that judgment.

PROCEDURAL HISTORY AND FACTS

The state charged petitioner with sex offenses against

nine victims committed over the course of approximately

304 Green v. Franke

five years.1 The victims were girls ranging in age from 12

to 17 years old. Some of the charges were based on sexual

contact that, although “consensual” in a colloquial sense,

was without lawful consent due to the ages of the victims

(in particular, the charges involving victims KN, MZ, and

CO). But the majority of the crimes were based on either a

theory of forcible compulsion or on lack of consent (specif-

ically, the charges involving victims SB, DH, CH, JA, BB,

and RM).2

Before petitioner’s criminal trial, counsel did not

move to sever the charges against petitioner for purposes of

trial. By the time of trial, counsel knew that petitioner had

acknowledged to police and to an underage girlfriend that

he had, in fact, had sex with some of the victims. Petitioner

also admitted to counsel that he had had sex with several of

the victims. Petitioner insisted, however, that those encoun-

ters were consensual, not forcible. Given that information,

counsel did not believe that he could mount a plausible

defense to the charges involving “consensual” sex—that

is, the charges that were based solely on the victims’ ages.

Thus, he decided to concede to the jury that petitioner had

committed the charged crimes against KN, MZ, and CO.

Counsel decided, instead, to focus his efforts on the charges

involving the other victims, all of which depended on

proof that petitioner had engaged in sexual contact either

using forcible compulsion or without their actual consent.

Counsel’s theory on the majority of those charges was that,

although petitioner may have had sex with several of the

girls, he did so only with their consent. Counsel did not

1

In particular, petitioner faced trial on five counts of first-degree rape, two

counts of third-degree rape, six counts of second-degree sexual abuse, three

counts of third-degree sexual abuse, one count of third-degree sodomy, and one

count of contributing to the sexual delinquency of a minor.

2

Five of the charges (i.e., the first-degree rape charges) involved a theory of

forcible compulsion. The remaining charges all involved sexual conduct that the

state alleged was non-consensual. Although for three charges (those involving

KN and CO and one of the charges involving MZ) the lack of consent was based on

the victims’ ages, for the remaining ten charges, the lack of consent was based on

defendant’s use of “force” only in the sense of exercising physical control over the

victims so that the sexual contact occurred despite their lack of actual consent to

it. See generally State v. Ofodrinwa, 353 Or 507, 532, 300 P3d 154 (2013) (phrase

“does not consent” in sexual abuse statute includes lack of capacity to consent due

to age as well as lack of actual consent).

Cite as 357 Or 301 (2015) 305

concede, however, that petitioner had sex with JA or BB.

His defense to the charges involving those victims was that

no sexual contact occurred.

At trial, the state did not argue that evidence relat-

ing to any one of the joined charges was relevant to prove

any other charge. However, all the charges were tried to a

jury in a single trial. The state called each of the victims to

testify about their interactions with petitioner and about

sexual acts that he committed against them. Three of the

victims described consensual sex with petitioner, and the

other six testified that petitioner against their will touched

their sexually intimate parts, caused them to touch his sex-

ually intimate parts, or—in the case of the five first-degree

rape charges—forcibly compelled them to have sexual

intercourse while they either resisted or told him to stop.

The state also called police detectives and other witnesses

to testify about statements that the victims had made to

them.

Petitioner’s counsel cross-examined the victims and

other witnesses in an attempt to emphasize evidence show-

ing that any sexual contacts that petitioner had with the

victims were, in fact, consensual. Counsel stressed that type

of evidence on cross-examination even if the charge other-

wise was uncontested.3 Counsel also attempted to persuade

the jury that several of the victims were connected to each

other and, to some extent, that the evidence about their alle-

gations should be considered together. Counsel did that in

two primary ways. First, he pointed out that some of the vic-

tims knew each other, either in general or in how they came

to report their allegations to police. As an example, during

his opening statement, counsel told the jury:

“I think detectives are going to testify that Detective Fryett

was making one investigation and Detective Young was

making another investigation over here, but the majority

of these girls really do know each other. And it’s—it started

out that there were two victims, and then [petitioner] was

3

For example, counsel cross-examined victims KN, MZ, and CO to ensure

that the jury heard that the encounters were consensual, even though counsel

conceded—given those victims’ lack of capacity to consent due to their ages—

petitioner’s guilt on those charges.

306 Green v. Franke

on TV, and all of a sudden there’s now nine victims. [The

prosecutor] said he thinks the evidence is going to show

that these people didn’t know each other; these girls didn’t

know each other very much. But I think the testimony is

going to come out that they really did know each other, a

lot of them.”

In his closing argument, counsel suggested a possible motive

for a particular victim (JA) to have fabricated a charge of

rape:

“Does [JA’s allegation] make any sense? I submit that it

does not, because the rape of her did not happen. I don’t

know why she’s lying. I don’t have any idea. But I can tell

you whether all these girls knew each other before, they

all know each other now. And if you don’t think the detec-

tives and the Victims’ Assistance [office] have talked to

these people, that’s nonsense. They’ve talked to these girls,

they’ve gotten them ready for trial, and they came and

testified.”

The second way in which counsel attempted to con-

nect evidence involving different victims was by contrast-

ing certain victims’ allegations with what other victims had

reported. For example, counsel elicited differences between

the circumstances that CH and SB had reported, and he gen-

erally noted how the reports of some victims did not fit the

“pattern” of what other victims reported. Counsel repeated

that theme in closing argument, telling the jury that RM’s

report was “out of the pattern of what some of these other

folks have said.”

For its part, the state emphasized in closing argu-

ment that the resolution of disputed factual issues in the

case required a credibility assessment:

“Now, in hearing from many of the victims, it’s a matter of

assessing credibility. And when you go into the jury room

to deliberate, we’re not asking you to leave your common

sense outside the door. We ask you to draw upon your expe-

rience as human beings in assessing credibility.”

The prosecutor then explained why the jury should find each

victim credible. Referring to evidence that petitioner had

attempted to influence the testimony of certain witnesses,

the prosecutor argued that,

Cite as 357 Or 301 (2015) 307

“when you look at [petitioner’s] statements during the

course of this trial, and of the investigation, and his tam-

pering with witnesses, they really give you insight into his

sexual assaults. And they parallel his predatory nature.”

The prosecutor continued:

“He’s assaulting victims while they’re sleeping and vulner-

able. [SB] and [DH]. He takes the victims by swift attack.

[RM], [JA], and [CH]. He takes the victims through manip-

ulation or subtle forms of coercion. [BB] and [KN]. He offers

reassurance to each victim, or tries to make them believe

that they want it.”

The jury ultimately convicted petitioner of all of the

charges, including the charges based on a theory of forcible

compulsion and lack of actual consent. After an unsuccessful

direct appeal, petitioner filed this action for post-conviction

relief, asserting several claims of inadequate assistance of

trial counsel. The amended petition for post-conviction relief

set out 12 allegations specifying the ways that petitioner

claimed his counsel’s representation in his criminal trial

was constitutionally inadequate. As noted, in the claim that

is pertinent on review, petitioner alleged that trial counsel’s

performance was inadequate because he

“failed to request that the trial court instruct the jury that

it was required to consider the evidence concerning each

alleged victim separately and only as that evidence related

to a specific charge or charges relating to that specific

alleged victim.”

In response to petitioner’s pleaded claims, the state

obtained two affidavits from petitioner’s trial counsel. In

general, the affidavits described the challenges that coun-

sel faced in defending the various charges in the criminal

case, explained counsel’s investigative efforts, and set out

counsel’s reasons for actions that counsel did and did not

take in the course of his investigation before trial and in his

representation at trial. On the allegation raising counsel’s

failure to request a limiting instruction, counsel explained

that “the Judge gave instructions about each and every

count that the State must prove” and the judge “read each

and every count and told the jury they had to find on every

count, so I don’t know what counsel is saying.” (Emphasis

308 Green v. Franke

added.) Counsel opined (using a rape charge as an example)

that the instructions were sufficient.4

Six months after petitioner filed the amended

petition, and ten days before trial, petitioner filed a trial

memorandum. Although the bulk of the 53-page memoran-

dum was devoted to the other allegations of his petition,

it included an argument that clarified petitioner’s claim

based on counsel’s failure to ask for a limiting instruction.

The memorandum urged that an instruction similar to the

one approved in State v. Kitzman, 129 Or App 520, 529,

879 P2d 1326 (1994), aff’d in part and rev’d in part on other

grounds, 323 Or 589, 920 P2d 134(1996), would have been

appropriate and could “have helped alleviate the potential

for the jury to find petitioner guilty of all the charges sim-

ply because, with nine separate victims, it believed that he

had a propensity for sexually abusing minor females.”5 That

instruction provided:

“[Defendant] has been charged with several unrelated

counts in a single indictment. A separate crime is charged

in each count of the Indictment. Each charge and the evi-

dence pertaining to it must be considered separately by the

jury.

“* * * * *

“In other words, it is your duty to consider the evidence

solely for the charge it pertains to and no other charge.”

Kitzman, 129 Or App at 529 (alterations in original).6

4

The other affidavit from counsel did not refer to the claim at issue.

5

OEC 404(3) provides:

“Evidence of other crimes, wrongs or acts is not admissible to prove the

character of a person in order to show that the person acted in conformity

therewith. It may, however, be admissible for other purposes, such as proof

of motive, opportunity, intent, preparation, plan, knowledge, identity, or

absence of mistake or accident.”

6

In Kitzman, as in this case, the defendant was charged with multiple sex

offenses committed against several underage victims. The Court of Appeals

rejected the defendant’s argument that the post-conviction court had erred in

denying his motion to sever the charges for trial, in part, because that court had

mitigated the prejudicial effect that is inherent in admitting evidence of crimes

against different victims “by giving defendant’s instruction that he was charged

with unrelated incidents and that each charge, and the evidence pertaining to it,

must be considered separately.” Kitzman, 129 Or App at 530.

Cite as 357 Or 301 (2015) 309

Ten days later, the state filed and served its own

trial memorandum. The state’s response to the claim at

issue consisted of the following:

“The State incorporates by reference the two affida-

vits of [trial counsel] that respond to petitioner’s claims.

As trial counsel’s affidavits confirm, petitioner’s claims

lack merit. The requests for jury instructions by the State

and trial counsel covered the key elements of petitioner’s

case. Petitioner will fail to prove that prejudice resulted

from counsel not requesting one additional instruction. To

be successful at this post-conviction level, petitioner would

have to prove that: (1) petitioner had a legal basis to request

an additional instruction; (2) petitioner actually wanted

the instruction; (3) the trial court would have allowed the

request and instructed the jury accordingly; (4) the one

additional instruction would have altered any juror’s vote,

and; (5) the one additional instruction would have caused

enough jurors to change their votes so that the jury ver-

dicts would have been different. Petitioner cannot satisfy

his burden of proof on these issues, and therefore cannot

show any trial counsel deficiency or resulting prejudice.”

(Internal citations to record omitted.)7

Like many post-conviction cases, this case was

tried in the main on a documentary record.8 Neither party

called trial counsel as a witness, nor did they present any

further sworn statement from him. Instead, trial counsel’s

“testimony” consisted solely of his pretrial affidavits. The

hearing itself was short. At the hearing, post-conviction

counsel focused on other claims in the petition and did not

mention the failure to request a limiting instruction. At

the conclusion of the hearing, the post-conviction court

rejected each of petitioner’s claims, commenting on each

one only briefly. With respect to counsel’s failure to request

a limiting instruction, the court said: “I don’t think it

7

The state did not argue before the post-conviction court or the Court of

Appeals that petitioner’s propensity argument was beyond the scope of his

pleaded claim or that the state was unfairly surprised by the elaboration of that

argument in petitioner’s trial memorandum.

8

ORS 138.620(2) provides, in part:

“If the petition states a ground for relief, the court shall decide the issues

raised and may receive proof by affidavits, depositions, oral testimony or

other competent evidence.”

310 Green v. Franke

would have changed anything at all. Clearly, I think that

was a proper instruction. Again, I don’t think the—the

result would have been any different.” In short, the post-

conviction court did not decide whether or not counsel’s

performance was inadequate with respect to the instruc-

tional claim; instead, the court concluded that petitioner

could not prevail on that claim because he had failed to

establish prejudice.

Petitioner appealed the ensuing judgment deny-

ing post-conviction relief. The Court of Appeals affirmed

with respect to all but one of petitioner’s claims; as noted,

it reversed on the claim involving trial counsel’s failure to

request a limiting instruction. This court’s decision in State

v. Leistiko, 352 Or 172, 282 P3d 857, adh’d to as modified

on recons, 352 Or 622, 292 P3d 522 (2012), was central to

the Court of Appeals’ holding. In Leistiko, this court held,

among other things, that evidence of other sexual crimes is

not relevant under OEC 404(3) to prove a defendant’s pro-

pensity to commit a charged offense. Leistiko, 352 Or at 180.

Based on that holding, the Court of Appeals concluded in

this case that petitioner’s trial counsel should have identi-

fied the “great and obvious danger” that the jury would rely

on impermissible propensity inferences in petitioner’s case.

Green, 261 Or App at 58.9

The court ultimately concluded that counsel per-

formed inadequately because “there was no evident down-

side to requesting such an instruction.” Id. (citing Pereida-

Alba v. Coursey, 252 Or App 66, 71, 284 P3d 1280 (2012),

rev’d, 356 Or 654, 342 P3d 70 (2015)). The court arrived at

that conclusion without expressly considering how the limit-

ing instruction would have meshed, or potentially conflicted,

9

That danger, the court concluded, was greater due to comments that the

prosecutor made during closing argument that the court believed suggested pro-

pensity purposes for the evidence. Id. at 57-58. In particular, the court empha-

sized the prosecutor’s statement:

“What are the chances that you’re going to have nine people coming before

you, six disclosing nonconsensual sexual touching, with the varied back-

grounds, with the same theme of manipulation, deceit, and coercion? What

are the chances?”

Id. In another part of the opinion, the court referred to the prosecutor’s state-

ments about petitioner’s “predatory nature” and about petitioner’s “patterns of

sexual assault.” Id. at 54.

Cite as 357 Or 301 (2015) 311

with counsel’s defense strategy at trial. That comes as no

surprise, because (as discussed in greater detail below) nei-

ther party addressed either before the post-conviction court

or the Court of Appeals the effect, if any, of counsel’s trial

strategy on the adequacy of his performance in failing to

request a limiting instruction.

Turning to the issue of prejudice, the Court of

Appeals—again, using Leistiko as an example—noted the

importance of instructions limiting a jury’s use of evidence

in “joined proceedings.” Id. at 59. The court concluded that

the absence of a limiting instruction prejudiced petitioner

with respect to all of his convictions, except the ones as to

which he admitted guilt. Without a limiting instruction, the

court reasoned, the jury “may well have,” was “permitted”

to, or was “invited to” make improper inferences about peti-

tioner’s propensity to commit sex offenses against one under-

age victim based on evidence that was admissible only with

respect to other charges involving different victims. Id. at

63-67. On that ground, the Court of Appeals held that trial

counsel’s deficient performance had a tendency to affect the

outcome of the case and, therefore, petitioner had suffered

prejudice. See id. at 59.

LEGAL PRINCIPLES AND STANDARD OF REVIEW

Post-conviction relief is warranted when there has

been a “substantial 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.” ORS 138.530(1)(a). The state-based right to

adequate assistance of counsel derives from Article I, sec-

tion 11, of the Oregon Constitution, which provides, in part,

that “[i]n all criminal prosecutions, the accused shall have

the right * * * to be heard by himself and counsel.” The fed-

eral right to effective assistance of counsel derives from the

Sixth Amendment to the United States Constitution’s guar-

antee that “[i]n all criminal prosecutions, the accused shall

enjoy the right * * * to have the Assistance of Counsel for

his defence.” This court has said that, although those provi-

sions are “worded differently,” they “embody similar objec-

tives.” Krummacher v. Gierloff, 290 Or 867, 871, 627 P2d 458

(1981).

312 Green v. Franke

In evaluating whether a criminal defense law-

yer has rendered inadequate assistance under the Oregon

Constitution, our analysis ordinarily proceeds in two steps:

“

‘First, we must determine whether petitioner demon-

strated by a preponderance of the evidence that [his or her

counsel] failed to exercise reasonable professional skill and

judgment. Second, if we conclude that petitioner met that

burden, we further must determine whether he proved that

counsel’s failure had a tendency to affect the result of his

trial.’ ”

Montez v. Czerniak, 355 Or 1, 7, 322 P3d 487, adh’d to as

modified on recons, 355 Or 598, 330 P3d 595 (2014) (quot-

ing Lichau v. Baldwin, 333 Or 350, 359, 39 P3d 851 (2002)

(internal citations omitted)). Only general statements can

be made about what constitutes the exercise of professional

skill and judgment. Krummacher, 290 Or at 873. Generally

speaking, “counsel must * * * prepare himself on the law to

the extent appropriate to the nature and complexity of the

case.” Id. at 875. Counsel need not, however, “expend time

and energy uselessly or for negligible potential benefit under

the circumstances of the case.” Id. at 874.

This court’s review of a post-conviction court’s

determinations is not open-ended. We review such proceed-

ings for errors of law. Peiffer v. Hoyt, 339 Or 649, 660, 125

P3d 734 (2005). A post-conviction court’s findings of histor-

ical fact are binding on this court if there is evidence in the

record to support them. Lichau, 333 Or at 359. If the post-

conviction court failed to make findings of fact on all the

issues—and there is evidence from which such facts could be

decided more than one way—we will presume that the facts

were decided consistently with the post-conviction court’s

conclusions of law. Id.

ANALYSIS

As discussed, in this case, petitioner contends

that his trial counsel’s performance was inadequate either

because counsel did not make a conscious choice to forego

asking for a limiting jury instruction or because, if he made

that choice, no reasonable counsel would have done so. This

court recently addressed a similar problem in Pereida-Alba

v. Coursey, 356 Or 654, 342 P3d 70 (2015). Because the

Cite as 357 Or 301 (2015) 313

analysis in that case is central to our analysis here, we first

discuss that case in some detail.

The petitioner in Pereida-Alba, having been con-

victed of first-degree robbery, asserted in a post-conviction

action that his trial counsel “either did not decide or rea-

sonably could not have decided to forego giving the jury the

option of convicting him of the lesser-included offense of

third-degree robbery.” Id. at 656. In Pereida-Alba, neither

party presented testimonial evidence from the petitioner’s

trial counsel. The state did, however, assert before the post-

conviction court that counsel’s failure to request the pos-

ited instruction would have been a reasonable tactical deci-

sion. In that regard, the state argued that, “given the store

employee’s favorable testimony, [the] petitioner’s trial coun-

sel reasonably could have made a tactical choice to limit the

jury’s options to convicting petitioner of first-degree robbery

or acquitting him.” Id. at 660. The post-conviction court

ruled that no reasonable counsel would have failed to ask

for an instruction on the lesser-included offense and entered

judgment in the petitioner’s favor.

The Court of Appeals affirmed. It observed that the

mandatory minimum sentence for first-degree robbery is

90 months’ imprisonment, while the guidelines sentence for

third-degree robbery ranges from probation to 16 months.

Pereida-Alba, 252 Or App at 71. Explaining that the evi-

dence permitted the petitioner to argue that he had commit-

ted third-degree robbery but not first-degree robbery, the

court reasoned:

“The upshot is that there was no evident downside to peti-

tioner from requesting an instruction on third-degree rob-

bery and a significant potential benefit to him from doing

so.”

Id. The Court of Appeals concluded, based on its assessment

of the potential risks and benefits, that “the post-conviction

court reasonably could [and implicitly did] infer that the

defense attorney’s failure to request an instruction on third-

degree robbery was attributable to the attorney’s failure

to consider whether to make such a request.” Id. The court

also concluded that counsel’s failure to consider whether to

request an instruction on third-degree robbery amounted

314 Green v. Franke

to inadequate assistance. Id. Finally, the Court of Appeals

concluded that counsel’s omission prejudiced the petitioner

because “the jury did not have a complete statement of the

law.” Id. at 72.

After an extensive examination of trial counsel’s

defense of the petitioner in the underlying criminal case,

this court concluded on review that counsel reasonably

could have determined that the absence of an instruction on

third-degree robbery would not have impermissibly skewed

the jury’s verdict towards a conviction for first-degree rob-

bery. Pereida-Alba, 356 Or at 668. This court further con-

cluded that counsel reasonably could have believed that,

when faced with the choice of convicting the petitioner of

the doubtful crime of first-degree robbery or acquitting him

altogether, the jury would choose the latter course. Id.

The remaining question was whether counsel had

made a conscious choice to forego asking for an instruc-

tion on third-degree robbery and, if she had failed to con-

sider that option, what the legal consequences of that fail-

ure were. This court explained that “the failure to consider

every possible tactical choice does not automatically estab-

lish inadequate assistance.” Id. at 670. In so concluding, this

court implicitly rejected as incomplete the Court of Appeals’

framing of the inadequate assistance inquiry in terms of

whether there “was no evident downside to petitioner from

requesting an instruction” and “a significant potential bene-

fit to him from doing so.” See id. at 661. That is, this court in

effect held that, even if such a cost-benefit inquiry suggests

that counsel’s failure to seek a limiting instruction may have

been deficient, the question remains whether the omission

constituted inadequate assistance, especially when viewed

in light of the strategy that the petitioner’s counsel did pur-

sue. See id. at 674.

This court in Pereida-Alba further concluded that

it could not assume that the post-conviction court implicitly

found that counsel failed to consider asking for an instruc-

tion on third-degree robbery. The court noted that the peti-

tioner had the burdens of production and persuasion on his

claim and that there was no direct evidence that his counsel

inadvertently had failed to seek a lesser-included offense

Cite as 357 Or 301 (2015) 315

instruction; the question then became “whether the circum-

stantial evidence in the record [was] sufficient to meet peti-

tioner’s burden of production.” Id. at 672. Because such cir-

cumstantial evidence did exist, this court remanded the case

to the post-conviction court with the following instructions:

“If the post-conviction court finds on remand that peti-

tioner has not met his burden of persuasion on that issue

and that petitioner’s counsel made a tactical choice, then

that choice was a reasonable one for the reasons explained

above. Conversely, if the post-conviction [court] finds that

petitioner has met his burden of persuasion and that his

counsel failed to consider asking for an instruction on the

lesser-included offense of third-degree robbery, then the

question whether petitioner’s counsel provided constitution-

ally adequate assistance becomes slightly more complex.

As this court recently explained, the failure to consider an

issue or undertake a particular investigation does not auto-

matically constitute inadequate assistance. However, the

absence of strategic thought or direction on the part of a

defense team can constitute inadequate assistance.

“As Montez explains, whether the failure to consider an

issue constitutes inadequate assistance will turn on, among

other things, whether the strategy that defense counsel

did employ was reasonable, the relationship between the

evidence or theory that defense counsel failed to consider

and the strategy that counsel did pursue, and the extent to

which counsel should have been aware of the strategy that

petitioner now identifies.”

Id. at 673-74 (internal quotations and citations omitted).

This court in Pereida-Alba ultimately held that,

if, on remand, the post-conviction court found that counsel

failed to consider asking for an instruction on third-degree

robbery, then the post-conviction court would have to decide

whether that failure constituted inadequate assistance

based on the reason for that failure, considered in light of

the strategy that the court found that counsel did pursue.

Id. at 674.

As further background, we briefly review certain

principles pertaining to the joinder of criminal charges

involving offenses of the same or similar character. ORS

132.560 provides, in pertinent part:

316 Green v. Franke

“(1)  A charging instrument must charge but one

offense, and in one form only, except that:

“* * * * *

“(b)  Two or more offenses may be charged in the same

charging instrument in a separate count for each offense if

the offenses charged are alleged to have been committed by

the same person or persons and are:

“(A)  Of the same or similar character.

“* * * * *

“(3)  If it appears, upon motion, that the state or defen-

dant is substantially prejudiced by a joinder of offenses

under subsection (1) or (2) of this section, the court may

order an election or separate trials of counts or provide

whatever other relief justice requires.”

In analyzing questions of joinder and severance of criminal

charges under ORS 132.560(3), a trial court must focus on

“any circumstance” that impairs a defendant’s right to a fair

trial. State v. Miller, 327 Or 622, 633, 969 P2d 1006 (1998).10

Of particular relevance is the “probable effectiveness of lim-

iting instructions given to the jury by the court.” State v.

Staley, 142 Or App 583, 589, 923 P2d 650 (1996), rev den,

324 Or 560 (1997). Where charges of the same or similar

character are jointly tried, this court has recognized that

“trial courts have the authority to give limiting instructions

to juries that require them to consider evidence only for a

particular purpose or in regard to a particular element.”

State v. Moore/Coen, 349 Or 371, 391, 245 P3d 101 (2010),

cert den, __ US __, 131 S Ct 2461, 179 L Ed 2d 1225 (2011).

In particular,

“[w]hen a trial court declines to sever joined offenses, and

evidence relating to one offense is not admissible to prove

another joined offense, a trial court ordinarily will instruct

the jury to consider the evidence on each offense separately

10

In State v. Barone, 329 Or 210, 986 P2d 5 (1999), cert den, 528 US 1086,

120 S Ct 813, 145 L Ed 2d 685 (2000), this court upheld the trial court’s decision

denying the defendant’s motion to sever three homicides for which the defendant

was indicted. However, the trial court in that case required that the prosecu-

tion “build a ‘fire wall’ between the three cases and to ‘present the cases totally

separately.’ ” Id. at 216. Prosecutors in Barone made three separate opening and

closing arguments; each case was presented separately.

Cite as 357 Or 301 (2015) 317

to prevent the jury from using the evidence offered to prove

one offense to decide another joined offense.”

Leistiko, 352 Or at 178 (“recognizing the risk that a jury

may use evidence admitted to prove one count in deciding

whether the state has proved a joined count”). In fact,

“[w]hen evidence which is admissible as to one party or for

one purpose but not admissible as to another party or for

another purpose is admitted, the court, upon request, shall

restrict the evidence to its proper scope and instruct the

jury accordingly.”

OEC 105.

With that background, we return to this case. As

noted, the state has not asserted that evidence that defen-

dant committed a crime against a particular victim was

admissible to prove that petitioner committed a charged

offense alleged against a different victim.11 Nor does the

state dispute that competent defense counsel ordinarily

would seek an appropriate limiting instruction in a case

where multiple charges involving different victims and sep-

arate criminal episodes have been joined for trial. Rather,

the state asserts that, although neither party offered evi-

dence from petitioner’s trial counsel explaining why counsel

did not request a limiting instruction, counsel’s strategy in

the criminal trial was to acknowledge petitioner’s guilt as

to the charges involving consensual sexual contact, but to

defeat the charges involving forcible sexual contact, and a

11

The Court of Appeals similarly observed that the state had not contended

before that court “that the evidence of unlawful sexual conduct pertaining to

any particular victim was nonetheless admissible as to a different victim for a

noncharacter purpose ‘such as proof of motive, opportunity, intent, preparation,

plan, knowledge, identity, or absence of mistake or accident.’ ” Green, 261 Or App

at 60 (quoting OEC 404(3)).

We note that this court recently held, in State v. Williams, 357 Or 1, 346 P3d

455 (2015), that, irrespective of OEC 404(3), “the admission of ‘other acts’ evi-

dence to prove character and propensity under OEC 404(4) depends on whether

the risk of unfair prejudice outweighs the probative value of the evidence under

OEC 403.” Williams, 357 Or at 20. If, on a new trial in this case, the state were to

offer other crimes evidence with respect to one or more victims to prove a charge

involving a different victim, the trial court would be required to address any

objection that defendant might make under OEC 403. We have no occasion here

to predict what ruling the trial court might make if that set of circumstances

were to unfold.

318 Green v. Franke

non-propensity instruction could have conflicted with that

strategy. The state explains:

“[T]rial counsel believed that petitioner had no plausible

defense to the charges that were based on consensual sex-

ual contact with the victims. Thus, he focused his over-

arching trial strategy on creating doubt about the more

serious charges that depended on forcible sexual contact.

He wanted the jury to believe that, although petitioner had

sexual contact with several of those victims, it was—like

the offenses to which he had admitted—consensual.”

(Emphasis in original.)

The state urges that, given that strategy to portray

all of the sexual encounters in which petitioner engaged as

consensual, a reasonable attorney might “have wanted the

jury to infer that the fact that petitioner had consensual sex

with some victims made it more likely that sex with other

victims was also consensual,” which would have conflicted

with a limiting instruction of the kind that petitioner claims

should have been requested. The state also points out that

counsel emphasized in argument that many of the victims

knew each other (suggesting that they had perhaps collab-

orated on their versions of what occurred) and counsel in

argument compared the accounts of some of the victims to

those of other victims. In the state’s view, counsel could not

have made those arguments if the limiting instruction had

been given.

Petitioner responds that, in the event that the

jury found that petitioner committed a sex offense against

a particular victim, petitioner needed to mitigate the risk

of being convicted of a charge involving a different victim

based on a perceived propensity to sexually abuse underage

girls. According to petitioner, that need was not necessarily

incompatible with the trial strategy that counsel pursued.

As petitioner sees it, his counsel’s defense strategy reduced

to trying to impeach the victim’s credibility, and impeaching

a victim’s testimony with evidence that she knew another

victim or that she described a different “pattern” of abuse

from other victims would not have been inconsistent with

admonishing the jury that—except for the limited purpose

of impeachment—it was required to consider the evidence

Cite as 357 Or 301 (2015) 319

concerning each victim separately and only as that evidence

related to a specific charge involving that victim. See OEC

105 (requiring limiting instruction upon request when “evi-

dence which is admissible as to one party or for one purpose

but not admissible as to another party or for another purpose

is admitted” (emphasis added)).

The difficulty with the arguments that the parties

make about the effect, if any, of counsel’s trial strategy on

petitioner’s instructional claim is that those arguments were

not made either before the post-conviction court or the Court

of Appeals. For that reason, the post-conviction court’s rul-

ing in this case did not include an express or implied find-

ing about whether counsel made a strategic choice to forego

requesting a limiting instruction. That circumstance invites

the question as to which party bore the burden of raising the

issue of whether counsel made a reasonable tactical choice.

To date, we have not expressly decided whether a post-

conviction petitioner’s procedural and evidentiary burdens

also include an obligation to identify, and then rebut, any

possible tactical reasons that counsel may have had for a lit-

igation action or omission.12 Nor have the parties addressed

that issue on appeal or review.

As a further complication on review, the Court of

Appeals’ framing of the inadequate assistance inquiry was

incomplete in asking whether there “was no evident down-

side to petitioner from requesting an instruction * * * and

a significant potential benefit to him from doing so.” See

Green, 261 Or App at 58 (quoting Pereida-Alba, 252 Or App

at 71). Consistent with this court’s holding in Pereida-Alba,

even where a cost-benefit inquiry suggests that counsel’s

failure to seek a limiting instruction was deficient, the ques-

tion remains whether the omission constituted inadequate

12

We note that, in Pereida-Alba, this court said:

“When, as in this case, the state argues that the petitioner’s trial counsel made

a reasonable tactical choice, that argument does not shift the burden of pro-

duction and proof; rather, as petitioner acknowledges, the burden of produc-

tion and proof remains with him.”

Pereida-Alba, 356 Or at 662 (emphasis added). Perida-Alba thus left the burden

of proof and persuasion with the petitioner when the state raises the possibility

that trial counsel made a choice for tactical reasons. But Perida-Alba did not

speak to what happens if the state does not raise that argument.

320 Green v. Franke

assistance of counsel, particularly when viewed in light of

the strategy that counsel did pursue. Pereida-Alba, 356 Or

at 674. Neither the post-conviction court nor the Court of

Appeals had the benefit of this court’s decision in Pereida-

Alba in considering petitioner’s claim. Moreover, as was the

circumstance in Pereida-Alba, the post-conviction court in

this case could have found from the evidence before it either

that counsel did or did not consider the need for a limiting

instruction.

To summarize: (1) the parties did not expressly lit-

igate before the post-conviction court the issue of the effect,

if any, of counsel’s trial strategy on the adequacy of coun-

sel’s performance in failing to request a limiting instruc-

tion; (2) this court has not expressly decided whether a post-

conviction petitioner’s procedural and evidentiary burdens

include anticipating the argument that counsel made a tac-

tical decision that was inconsistent with the act or omission

complained of, and the parties have not addressed that issue

on appeal or review; (3) neither the post-conviction court nor

the Court of Appeals had the benefit of this court’s decision

in Pereida-Alba in considering the adequacy of counsel’s per-

formance in this case; and (4) the record before us would per-

mit the post-conviction court to draw opposing inferences as

to whether trial counsel did or did not consider requesting

a limiting instruction and how such an instruction would

have fit with counsel’s overall trial strategy.

In light of those circumstances, we conclude that

the proper course of action is to reverse the decision of the

Court of Appeals, reverse the post-conviction court’s judg-

ment denying post-conviction relief with respect to peti-

tioner’s instructional claim, and remand that claim to the

post-conviction court for further consideration in light of

this court’s decision in Pereida-Alba. In reaching that con-

clusion, we recognize that the post-conviction court did not

actually decide whether counsel’s failure to request a limit-

ing instruction constituted inadequate assistance; instead,

the court concluded that petitioner failed to demonstrate

prejudice. As noted, the Court of Appeals rejected the post-

conviction court’s conclusion with respect to prejudice. On

review, the state challenges the Court of Appeals’ analysis

of prejudice, raising several reasons why, in the state’s view,

Cite as 357 Or 301 (2015) 321

the Court of Appeals was wrong and the post-conviction court

was right. If we were to agree with the state’s arguments

in that regard, it would obviate the need for a remand. We

therefore briefly address one argument that the state makes

and that is appropriate for us to resolve at this juncture.

The state argues that the Court of Appeals applied

the wrong legal standard for prejudice. The state asserts

that, “[r]ather than evaluating what likelihood a limiting

instruction would have had on the jury’s verdict, the Court

of Appeals evaluated what likelihood it could have had.”

(Emphases in original.) The post-conviction court used the

probability-based formulation of the prejudice standard for

which the state advocates when it concluded that, if counsel

had requested a limiting instruction, the result “would” not

have been different. We conclude, however, that the post-

conviction court was mistaken in doing so.

As the Court of Appeals explained, to prove preju-

dice, petitioner had to show that his trial counsel’s deficient

exercise of skill and judgment had a “tendency to affect the

result of the prosecution.” Green, 261 Or App at 59. This

court first used the phrase “tendency to affect the result of

the prosecution” more than 30 years ago in Krummacher,

wherein the court concluded that “only those acts or omis-

sions by counsel which have a tendency to affect the result

of the prosecution can be regarded as of constitutional mag-

nitude.” 290 Or at 883. Although the court in Krummacher

did not elucidate the meaning of that term, the court applied

it by concluding that the petitioner’s trial counsel’s failure

to object to a leading question did not have a tendency to

affect the outcome of the prosecution because the omission

was “inconsequential.” Id.

In Stevens v. State of Oregon, 322 Or 101, 902 P2d

1137 (1995), the petitioner established that his trial counsel

in a rape prosecution had failed to adequately investigate

and discover witnesses who would call into question the

complaining witness’s credibility. The Court of Appeals had

affirmed the post-conviction court’s denial of post-conviction

relief on the ground that the petitioner had not proved “sub-

stantial[ ] prejudice[ ].” Stevens v. State of Oregon, 129 Or

App 533, 537, 879 P2d 893 (1994). The Court of Appeals had

322 Green v. Franke

described substantial prejudice as omissions by trial coun-

sel that “would have affected the outcome of the case” and

held that the omissions likely had not made any difference

in the outcome of the prosecution. Id. On review, as it had

in Krummacher, this court framed the prejudice inquiry in

terms of whether the inadequate performance of the peti-

tioner’s counsel had a tendency to affect the outcome of the

trial. Stevens, 322 Or at 110. This court concluded that coun-

sel’s errors “denied [the] petitioner highly valuable impeach-

ing evidence from disinterested witnesses that would have

called into question pivotal testimony of the complaining

witness.” Id. The omitted evidence had a tendency to affect

the outcome, this court concluded, because there were “no

other witnesses to the alleged rape and no physical evi-

dence of abuse or trauma,” and the prosecution “necessarily

turned on the credibility of the complaining witness and of

[the] petitioner.” Id. at 108-09.

In Lichau, this court concluded that the petitioner

was prejudiced by his trial counsel’s unreasonable failure to

investigate a possible alibi defense to charges of rape, sod-

omy, and sexual abuse of the petitioner’s underage niece.

Lichau, 333 Or at 363-64. The court noted that, if counsel

had presented an alibi defense, the jury would have heard

additional evidence that the petitioner was not in the state

when the sexual abuse allegedly had occurred, and the jury

would have been instructed that the prosecution had the

burden of proving, beyond a reasonable doubt, that the peti-

tioner was present in the state during the narrow period of

time at issue. Id. at 364-65. Because the case turned pri-

marily on the credibility of the petitioner and the victim, the

court concluded that “the presentation of [the alibi] evidence

could have tended to affect the jury’s consideration of the

niece’s and petitioner’s version of events.” Id. at 365 (empha-

sis added).

As the described cases indicate, where the effect of

inadequate assistance of counsel on the outcome of a jury

trial is at issue, it is inappropriate to use a “probability” stan-

dard for assessing prejudice. Instead, because many differ-

ent factors can affect the outcome of a jury trial, in that set-

ting, the tendency to affect the outcome standard demands

more than mere possibility, but less than probability. As the

Cite as 357 Or 301 (2015) 323

court stated in Lichau, the issue is whether trial counsel’s

acts or omissions “could have tended to affect” the outcome of

the case. Id. (emphasis added).13

Because the post-conviction court appears to have

applied the wrong legal standard for prejudice, it is inap-

propriate to affirm the post-conviction court’s judgment on

prejudice grounds on the record before us.

The decision of the Court of Appeals is reversed.

The judgment of the circuit court denying post-conviction

relief is reversed and remanded with respect to petitioner’s

instructional claim, and is otherwise affirmed.

13

In contrast, where the prejudice inquiry focuses on a different type of out-

come, for example, whether in the absence of inadequate assistance of counsel

the petitioner would have entered a guilty plea, this court has described the ten-

dency to affect the outcome test in terms of actual probability. Thus, in Moen v.

Peterson, 312 Or 503, 513, 824 P2d 404 (1991), the court held that, “to prevail in

this case, [the] petitioner must show by a preponderance of the evidence that, had

counsel informed him of the possibility of a minimum sentence, or had he other-

wise been aware of it, he would not have pleaded no contest.” (Footnote omitted;

emphasis added.) See also Trujillo v. Maass, 312 Or 431, 437, 822 P2d 703 (1991)

(framing prejudice inquiry in terms of whether the petitioner “would have with-

drawn his plea” if counsel’s advice had been adequate).