LAGESEN, P. J.
Petitioner appeals a judgment denying his petition for post-conviction relief from his conviction for aggravated theft. He contends that the post-conviction court erred by rejecting his claim that his trial counsel rendered constitutionally inadequate and ineffective assistance of counsel, in violation of his rights under Article I, section 11, of the Oregon Constitution and the Sixth Amendment to the United States Constitution when counsel did not competently contest the admissibility of out-of-court statements by his nephew implicating him in the crime. We agree. We therefore reverse and remand for entry of judgment granting the petition for post-conviction relief.
The parties do not dispute the pertinent facts. We therefore review the post-conviction courts denial of relief for legal error. Green v. Franke , 357 Or. 301, 312, 350 P.3d 188 (2015).
The facts are as follows: A 414-pound metal furnace coil disappeared from a graphite manufacturing company. Police located the coil at a metal recycling company. That company reported that it had purchased it from a woman, Ephrem. Ephrem, in turn, told police that the coil came into her hands via a sale from someone named Nate and someone named Virgil (petitioners first name). She described the person named Virgil as a 45- to 50-year-old white male who was 58? tall, real skinny, sick looking with salt and pepper hair that was stringy. (Petitioner was a little younger and not aptly described as real skinny.) Ephrem said that Virgil used a phone that he said belonged to his girlfriend, Tula, that he drove a white compact pickup, and that Ephrem had contacted him at an address on Foster Road in Damascus, which she gave to police. (Petitioner had a girlfriend named Tula and drove a blue-and-silver pickup. The address in Damascus belongs to petitioners family.) When shown a photograph of petitioner, Ephrem thought that petitioner could be the Virgil who had sold her the coil, but was not sure. Ephrem easily identified the person named Nate in a photograph.
The investigating detective, Storagee, went to the address that Ephrem provided. There, he met petitioners father (also named Virgil), petitioners sister, petitioners brother-in-law, and petitioners nephew, Miller. When Storagee interviewed Miller, Miller told Storagee that he had helped [petitioner] and two women load a large copper ring and some * * * five-foot-long pieces of stainless steel pipe into his truck around the time the coil went missing from the graphite manufacturing company.
Petitioner was charged with aggravated theft. He waived a jury and was tried in a bench trial. Ephrem testified and identified petitioner in court as the person who had sold her the coil, although she acknowledged that he did not much resemble the description she previously had given. Miller could not recall either the incident or his statements to Storagee, apparently because of the effect of a prior head injury on both his long-term and short-term memory. The state then sought to admit, through Storagees testimony, Millers previous statements about assisting petitioner in loading the copper ring into the truck. Petitioners trial counsel raised a hearsay objection, to which the trial court responded, Well, havent we sort of established that the previous witness has no clue? Agreeing with that point, trial counsel did not pursue the objection any further, and Millers out-of-court statements were admitted. The prosecutor relied on the evidence in closing argument, noting that, in addition to the circumstantial evidence pointing to petitioner and Ephrems in-court identification,
[w]e additionally get testimony, though it had to come third hand through the officer, from Mr. Miller that [petitioner] had specifically asked him to load up a piece of metal onto his truck in the time frame that were talking about. And theres no question that this is [petitioner].
The prosecutor emphasized Millers statements again in rebuttal, arguing that [w]e have Mr. Millers testimony in full, and that we have Jacob Miller saying, This is his truck, and this is his house, and I helped him with a coil about a month and a half ago.
The trial court found petitioner guilty. Although the court found that there were issues with Ephrems in-court identification and did not rely on it, the court explained that there would have to be remarkable coincidences for this to be * * * anybody other than [petitioner]. It noted that Millers statements pulled the circumstantial evidence together:
"Mr. Millers earlier statement ties things in. I dont think theres any reason to find that the statement he gave to the officer is questionable in terms of his memory. I mean, you can be pretty severely impaired and still know who your uncle is.
So I dont have a problem with-you know, I mean, obviously Mr. Miller has some issues. Hes working on them. I hope things are going well for him. I dont find those problems, either in terms of the head injury or the drug abuse history, to be such that I wouldnt place some confidence in the statements he made to the officer back when the officer came and talked to him not all that long after all this happened, the fact that hes unable or unwilling to remember any of that now, not persuasive to me that he didnt accurately remember it when he gave the account to the officer.
After an unsuccessful appeal, petitioner initiated this post-conviction proceeding. Petitioner alleged, among other things, that he was entitled to relief based on his trial counsels failure to adequately contest the admissibility of Millers out-of-court statements implicating petitioner in the theft of the coil, asserting that it was inadmissible hearsay and that competent counsel would have objected to the trial courts use of that testimony as substantive evidence upon which to convict petitioner. The trial court denied relief. As we-and the parties-read the courts written ruling, the court determined that trial counsel performed deficiently in contesting the admissibility of Millers out-of-court statements, and that the evidence was inadmissible and should have been excluded, but that the admission of the evidence did not prejudice petitioner because the evidence was, in its view, only a minor factor in the courts finding of guilt:
The attorney objected to Millers testimony but backed down when the judge indicated that he was going to allow it. The testimony was not admissible. The court made a speaking ruling and listed all of the factors showing guilt. Millers testimony was only a minor factor. This court finds no prejudice.
On appeal, petitioner argues that the post-conviction court erred when it concluded that petitioner was not prejudiced by trial counsels failure to effectively challenge the admissibility of Millers out-of-court statements implicating him in the theft of the coil. In response, the state does not challenge the post-conviction courts conclusion that the statements were not admissible as substantive evidence, and its related conclusion that competent counsel would have demonstrated to the trial court why the statements were not admissible, beyond simply raising a hearsay objection. Instead, the state argues that the trial courts speaking verdict demonstrates that Millers statements played such a small role in the trial courts finding of guilt that we can be confident that the court would have made the same finding even if those statements had been excluded, such that trial counsels deficient performance did not prejudice petitioner. In support of that proposition, the state points our attention to the direct appeal case of State v. Hunter , 141 Or. App. 73, 918 P.2d 104, rev. den. , 324 Or. 78, 921 P.2d 968 (1996). In that case, we concluded that the erroneous admission of evidence at a bench trial was harmless where the trial courts speaking verdict indicated that, although the court had placed some weight on the disputed evidence, it relied primarily on other evidence. Id . at 77 & n. 6, 918 P.2d 104. The state suggests that this case, like Hunter , is one in which the trial courts explanation of its decision demonstrates that it relied primarily on evidence other than the contested evidence, so as to preclude the conclusion that petitioner was prejudiced by the erroneous admission of that evidence.
Under Article I, section 11, a post-conviction petitioner is entitled to relief from a conviction on the ground of inadequate assistance of trial counsel if the petitioner demonstrates two things: (1) that trial counsel failed to exercise reasonable professional skill and judgment; and (2) that that deficiency in performance prejudices the petitioner. Green , 357 Or. at 312, 350 P.3d 188. For purposes of this appeal, it is uncontested that petitioners trial counsel performed deficiently in contesting the admissibility of Millers out-of-court statements. The issue before us is the correctness of the post-conviction courts determination on the prejudice element of petitioners claim. That requires us to assess whether the deficient performance could have affected the outcome of the case. Maxfield v. Nooth , 278 Or. App. 684, 688, 377 P.3d 650 (2016) (emphasis in original). The standard demands more than mere possibility, but less than probability that trial counsels deficient performance affected the outcome of the case. Green , 357 Or. at 322, 350 P.3d 188.
Here, the trial courts speaking verdict, when considered in its entirety in the context of the whole record, belies the post-conviction courts conclusion that Millers statements were such a minor factor in the courts decision that there is no more than a mere possibility that the admission of the statements affected the outcome of the case. That is, the evidence could have affected the courts decision. The state specifically pointed the courts attention to Millers statements in its arguments, for understandable reasons. Miller, after all, was petitioners nephew, someone likely to recognize his own uncle, an observation that the trial court made expressly. The states arguments resonated with the court. It specifically remarked that it thought Millers statements tie[d] things in and found them to be accurate. The only other witness directly linking petitioner to the coil was Ephrem, and the trial court found her in-court identification too problematic to take into account. The other evidence against petitioner was circumstantial. Although a number of those circumstances pointed strongly toward petitioner-the name, the address, the girlfriends unusual name-some pointed a different direction entirely. Ephrem initially was not able to identify petitioner as the Virgil she dealt with when she was shown petitioners photograph, and her description of the person she knew as Virgil did not bear much resemblance to petitioners appearance at the time of trial or in photographs from earlier times-Ephrem herself admitted as much at trial.
Those circumstances demonstrate that Millers statements played a not-insubstantial role in the trial courts verdict, such that if trial counsel had performed competently and secured their exclusion, the trial court could have reached a different conclusion regarding petitioners guilt. This case is unlike Hunter , on which the state relies, because, when the trial courts speaking verdict is considered as a whole, it cannot be said that the court relied primarily on other evidence; Millers statements tied the case together, in the court view. Further contrasting this case from Hunter is the fact that the contested evidence in this case was not duplicative of other evidence that had been admitted without objection, a fact that made the disputed evidence in Hunter unlikely, on its own, to have affected the verdict. Petitioner, therefore, was prejudiced by trial counsels deficient performance.
For those reasons, we conclude that petitioner is entitled to post-conviction relief on his conviction for aggravated theft on the ground that he received inadequate assistance of counsel in violation of Article I, section 11. Having determined that petitioner is entitled to post-conviction relief under our state constitution, we need not address petitioners contention that he is entitled to relief under the federal constitution.
Reversed and remanded with instructions to grant petitioner post-conviction relief on his conviction for aggravated theft.
The trial courts statement that it had been established that Miller had no clue suggests that the court determined that Millers lack of memory made him unavailable to testify to the events that he had previously reported to Storagee for purposes of OEC 804, which allows for the admission of certain types of out-of-court statements for their truth if the declarant is unavailable because the declarant [t]estifies to a lack of memory of the subject matter of a statement. OEC 804(1)(c). But not all out-of-court statements become admissible for their truth as a result of the declarants unavailability, and Millers out-of-court statements to Storagee do not fall within the categories of statements that OEC 804(3) makes admissible if the declarant is unavailable. Trial counsel did not call the courts attention to its apparent misunderstanding regarding what types of out-of-court statements are made admissible by a declarants unavailability to testify about the subject matter of the statements.