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Oregon Appeals Court: Defense Counsel Constitutionally Inadequate in Sexual Abuse Case

by Mark Wilson

The Oregon Court of Appeals upheld a post-conviction court’s judgment that a criminal defendant was denied effective assistance of trial counsel when his lawyer failed to object to an expert witness vouching for the credibility of the alleged victim’s sexual abuse claim. As such, the lower court set aside defendant’s convictions for sodomy, unlawful sexual penetration, and sexual abuse. The Court of Appeals affirmed.

Alan Alne was charged with sexually abusing a five-year-old girl after she told her father that Alne had touched her vagina with his fingers and mouth while babysitting her. The child was taken to CARES child abuse assessment center, where she was evaluated by a doctor and interviewed by Thomas Findlay, a CARES social worker.

The case proceeded to trial, and Findlay testified about his interview of the child. Upon questioning by the prosecutor, Findlay testified that given the child’s age, she likely would not have a basis to allege the conduct unless she had experienced it. The prosecutor asked Findlay whether the child’s allegations, given her age, are something that she would come up with herself had she not been abused. Findlay responded that in light of his training and experience her allegations “seemed like a genuine statement.” Findlay’s lawyer did not object to Findlay’s testimony.

No physical evidence of the alleged abuse was introduced at trial. Evidence was introduced at trial, however, that the child had previously been evaluated by CARES three previous times for sexual abuse unrelated to Alne. There was also evidence that prior to her allegations against Alne, the child may have witnessed her parents engaging in sexual activity and seen pornographic videos playing on two occasions.

During closing statements, the prosecution told the jury that the child’s testimony was “the heart of the state’s case” and repeated that her statements to Findlay were “critical.”

The jury convicted Alne of three sex crimes, which were affirmed on direct appeal. See: State v. Alne,281 P.3d 685 (Ore. Ct. App. 2012), rev den, 290 P.3d 813 (Ore. 2012). Alne then filed a petition for post-conviction relief (“PCR”), alleging that trial counsel was ineffective for failing to object, moving to strike, or seeking a mistrial, given that Findlay’s expert testimony constituted impermissible vouching for the child’s credibility when he testified that her allegations seemed “genuine.”

The PCR court concluded that Alne proved that trial counsel was constitutionally inadequate by failing to object to Findlay’s testimony regarding the credibility of the child’s allegations. The court granted Alne relief, concluding that the error had a tendency to affect the outcome of the trial. The State appealed.

The Oregon Court of Appeals affirmed the PCR court’s decision. It began its analysis by noting that PCR is warranted when there has been a “substantial denial” of “rights under the Constitution of the United States, or under the Constitution of the State of Oregon, or both….” The standards for inadequate assistance of counsel “are functionally equivalent under both” constitutions.

The Court then addressed the failure of trial counsel to object to Findlay’s testimony vouching for the credibility of the child’s allegations. It is settled law in Oregon that “a witness may not directly comment on the credibility of another witness,” the Court noted. Yet that is precisely what Findlay did, but trial counsel did not object to his inappropriate testimony. The Court of Appeals concluded that Findlay’s testimony constituted true vouching. “Consequently, by not objecting to Findlay’s testimony that the complainant’s statement seemed genuine, trial counsel failed to exercise reasonable professional skill and judgment.”   

The Court then concluded that the “trial counsel’s failure to object had a tendency to affect the result of the trial.” It was likely that Findlay’s vouching testimony affected the outcome of the case, especially since there was no physical evidence to support the convictions.

Therefore, “we conclude that the post-conviction court did not err in granting petitioner post-conviction relief because petitioner’s trial counsel was constitutionally inadequate … by failing to object to Findlay’s vouching testimony.”

See: Alne v. Nooth, 288 Ore. App. 307 (2017). 


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Alne v. Nooth



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