No. 514 June 10, 2026 373
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
MARCELLUS RAMON ALLEN,
Petitioner-Appellant,
v.
Jamie MILLER,
Superintendent,
Snake River Correctional Institution,
Defendant-Respondent.
Malheur County Circuit Court
22CV03503; A185685
J. Burdette Pratt, Senior Judge.
Argued and submitted May 7, 2026.
Lindsey Burrows argued the cause for appellant. Also on
the briefs was Burrows Appellate Law LLC.
Rebecca M. Auten, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Dan Rayfield, Attorney General, and Benjamin Gutman, Solicitor General.
Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
TOOKEY, P. J.
Affirmed.
374 Allen v. Miller
TOOKEY, P. J.
Petitioner appeals a judgment denying postconviction relief after his second trial for murder. The victim was shot nine times using three different guns, and the
state’s theory was that petitioner and two other members of
a gang shot the victim. Petitioner argues that he received
inadequate and ineffective assistance of counsel at his second trial. In his first assignment of error, petitioner argues that counsel’s performance was deficient because counsel
made inaccurate statements about what the evidence would
show without having properly reviewed discovery. More
specifically, during petitioner’s opening statement, counsel
stated that phone records would show that petitioner was
not with one of the other shooters, Lomax, at the time of the
shooting, but that claim was based on a misunderstanding
of the phone records. Second, petitioner argues that trial
counsel failed to preserve an objection to the admissibility of propensity evidence. The post-conviction court denied relief,
and the superintendent maintains that the court did not err.
We affirm.
First, we agree with petitioner that one of his trial
attorneys failed to exercise reasonable professional skill and judgment when he told the jury during petitioner’s opening
statement that the phone records would show that petitioner
was not with Lomax at the time of the shooting, which was
based on a mistake about the phone records. Even so, when
considered in the context of the other evidence presented
during petitioner’s second trial, petitioner has not shown
prejudice; in other words, he has not shown that counsel’s
deficient performance could have tended to affect the outcome of the case because, as set forth below, the evidence
that petitioner was one of three people who shot and killed
the victim was overwhelming. See Derschon v. Belleque,
252 Or App 465, 466, 287 P3d 1189 (2012), rev den, 353
Or 208 (2013) (affirming denial of post-conviction relief and
concluding that “any errors that trial counsel made in the
course of representing petitioner did not prejudice petitioner because the state introduced overwhelming evidence
of petitioner’s guilt apart from the contested evidence”).
Cite as 350 Or App 373 (2026) 375
Because petitioner fails to show prejudice, we affirm on the
first assignment of error.
Second, we are not persuaded that it was unreasonable for trial counsel to fail to object to the admissibility of gang evidence and evidence of other shootings. In the trial
court, defense counsel made a tactical decision to propose
stipulations about petitioner’s gang membership and then
to object to much of the state’s gang evidence as unnecessarily cumulative or prejudicial. Considered in that context,
trial counsel was not deficient by failing to object to gang
evidence as impermissible propensity evidence. See Gorham
v. Thompson, 332 Or 560, 567, 34 P3d 161 (2001) (“It is wellestablished that a reviewing court will not second-guess a
lawyer’s tactical decisions in the name of the constitution
unless those decisions reflect an absence or suspension of
professional skill and judgment.”). In addition, petitioner
fails to show prejudice because he has not established that
an objection to specific items of gang evidence on propensity
grounds would have been successful. We therefore affirm
the post-conviction court’s denial of relief.
I. FACTS
On May 9, 2012, the victim, H, was shot nine times
with three different guns. The state’s theory was that petitioner was one of three people who shot and killed the victim, that the three persons were members of the same gang,
and that they killed the victim because he was a competing
marijuana dealer. On direct appeal after a second trial, we
provided the following account of the facts:
“H had been in the business of selling medical marijuana to individuals, and he was known for selling high
quality marijuana at about half the price of other sellers.
According to the state’s evidence, at around 11:30 p.m. on
May 9, 2012, three men appeared at H’s home, and someone knocked on the door. H’s domestic partner, N, heard
someone say they knew one of H’s close friends and wanted
to buy marijuana. H stepped outside and told N to go
upstairs. As she did, she heard someone yell H’s name and
then ‘a lot’ of gunfire. N told the officers that she had looked
through the peep hole to see a dark-skinned man wearing
a red baseball hat on the front porch. Later that night, she
told officers that the hat might instead have been white or
376 Allen v. Miller
gray, but she maintained that the man was wearing a ‘red
top’ or something red.
“An autopsy and ballistics analysis would later reveal
that H had been shot nine times with three different guns.
A criminalist also concluded from wounds that three guns
were fired from different positions, indicating three shooters. Three kinds of bullets and casings were found at the
scene and during the autopsy: .22 caliber, 9 millimeter, and
.380 caliber.
“Soon after the shooting, police learned that three suspects were hiding in a nearby apartment. Police surrounded
the apartment for several hours. Eventually, the officers
took the three men into custody and searched the apartment. Among other items, officers found three guns—a .22
caliber revolver, a 9 millimeter handgun, and a .380 caliber
handgun—that were later confirmed to be the three guns
used to shoot H. (The state’s theory would be that defendant used the .380 handgun.) Officers also found items
of clothing. DNA testing connected two of those things to
defendant: a red baseball hat with a white letter ‘M’ and a
sweatshirt with the letters ‘LRG’.”
State v. Allen, 311 Or App 454, 455-56, 489 P3d 1075,
rev den, 368 Or 702 (2021) (Allen II).
All three of the alleged shooters were tried together
in 2014, and a jury found all three of them guilty of murder.
Petitioner appealed, and we reversed and remanded for a
new trial because the trial court erred in failing to suppress evidence discovered using a search warrant of petitioner’s
cell phone that was overbroad. State v. Allen, 288 Or App
244, 249, 406 P3d 89 (2017) (Allen I). On remand, Lomax
and Riley pleaded guilty, but petitioner did not, and he
exercised his right to have the case re-tried within 60 days.
At his second trial in 2018, another jury found petitioner
guilty of murder, and, on direct appeal, we affirmed. Allen
II, 311 Or App at 456.
Petitioner sought post-conviction relief raising
claims of inadequate and ineffective assistance of counsel, including claims based on counsel’s mistake about the
phone records and the failure to object to the admissibility of propensity evidence. The post-conviction court denied
relief, and petitioner appeals.
Cite as 350 Or App 373 (2026) 377
II. ANALYSIS
A criminal defendant has the right to adequate and
effective assistance of counsel under Article I, section 11, of the Oregon Constitution and under the Sixth and Fourteenth
Amendments to the United States Constitution. Antoine v.
Taylor, 368 Or 760, 767, 499 P3d 48 (2021). A violation of
those rights entitles a petitioner to post-conviction relief.
ORS 138.530(1)(a). Under the Oregon Constitution, to succeed on a claim of inadequate assistance, a petitioner must
establish by a preponderance of the evidence that “counsel
failed to exercise reasonable professional skill and judgment, and that the petitioner suffered prejudice as a result of counsel’s inadequacy.” Johnson v. Premo, 361 Or 688, 699, 399 P3d
431 (2017). “A functionally equivalent two-element standard
governs petitioner’s claim of ineffective assistance of counsel under the Sixth Amendment.” Smith v. Kelly, 318 Or App 567,
568-69, 508 P3d 77 (2022), rev den, 370 Or 822 (2023).1
To show prejudice from inadequate assistance, the
petitioner must show that counsel’s deficient performance
had “a tendency to affect the result of his trial.” Johnson,
361 Or at 699 (internal quotation marks omitted). That
standard “demands more than mere possibility, but less
than probability.” Green v. Franke, 357 Or 301, 322, 350 P3d
188 (2015). “In making that determination, the court must
consider the totality of the circumstances.” Derschon, 252
Or App at 474 (internal quotation marks omitted). In doing
so, the question for the court “is not simply whether counsel’s failure had any negative effect regarding a particular
issue. Rather, the question is whether the negative effect, if any, as to that issue in turn tended to affect the result in the proceeding as a whole.” Id. (internal quotation marks and
brackets omitted).
When the post-conviction court denies relief on a
claim of inadequate assistance of counsel, we review for
errors of law. Green, 357 Or at 312. In doing so, we are
bound by the post-conviction court’s findings of historical
1
Although the case law tends to refer to a defendant’s right to “adequate” assistance of counsel when discussing the state constitution, and to “effective” assistance of counsel when discussing the federal constitution, here we use the term adequate assistance as a shorthand for both adequate and effective assistance of counsel.
378 Allen v. Miller
fact so long as there is evidence in the record to support
them. Id.
A. The post-conviction court erred in determining that trial
counsel provided adequate assistance, but it did not err
in determining that trial counsel’s mistake did not prejudice petitioner.
In the post-conviction court, petitioner pointed out
that, at the second trial, defense counsel made a claim to the jury without having reviewed discovery to confirm that he
could deliver on that claim. More specifically, counsel told
the jury that the phone records would show that petitioner
was not with one of the other shooters, Lomax, when the
shooting occurred. But that was based on a misunderstanding that there had been two phone calls between petitioner
and Lomax at 11:38 p.m., when in fact the calls were made
at 11:38 a.m.
In considering whether that mistake amounted to
inadequate assistance of counsel, the post-conviction court
ruled that it did not. The court stated:
“There is no dispute that in his opening statement, [trial
counsel] did appear to confuse 11:38 a.m. with 11:38 p.m.,
but as explained below, this is not because of inadvertence
to detail or neglect, but because all five attorneys and a
police detective present for petitioner’s 2013-2014 trial,
including the assigned prosecutors, made the same error
and the entire 2013-2014 trial transpired without any
attorney in the room realizing that the [phone records]
actually indicated that petitioner was making texts and/
or phone calls to his co-defendant at 11:38 a.m. instead of
11:38 p.m. The mistake appears to have originated from
[a] District Attorney Investigator * * *, who first mistakenly
testified at trial that there was cell phone activity between
co-defendants at 11:38 p.m. Petitioner has not proven that
all reasonable trial attorneys would have caught the error.
Five attorneys in the first trial did not.
“Petitioner also failed to prove prejudice. During the
first trial, the evidence before the jury was that the phone
call was made at the same time as the murder, yet petitioner was still convicted. As soon as [the prosecutor] caught
the mistake that the [phone records] indicated cell phone
activity at 11:38 a.m. instead of 11:38 p.m., he brought this
Cite as 350 Or App 373 (2026) 379
mistake to [defense counsel’s] attention, providing him with
an opportunity to correct it. Petitioner’s defense did avail
themselves of the opportunity to correct the mistake in a
few instances during the 2018 re-trial. * * * [The attorneys
for both the state and the defense] addressed the mistake
during their respective cross-examination and redirect of
[the] DA investigator * * *. By the prosecutor also ‘owning’
the mistake, this likely negated any loss of credibility to
[defense counsel], since the jurors were provided with a
compelling explanation for why [defense counsel] made the
mistake directly from the prosecutor. The issue was also
addressed during closing.”
Regarding the first element of a claim of inadequate
assistance, unlike the post-conviction court, we think that
trial counsel’s performance fell short of the constitutional
standard, and that it was not reasonable to make a claim
to the jury during petitioner’s opening statement without
having verified that the phone records supported the claim.
Defense counsel argued during petitioner’s opening statement that “forensic evidence” would show that petitioner
was not with Lomax at the time of the shooting, and that
“[t]he phone does not lie.” We think it was unreasonable for
trial counsel to make those claims without having checked
whether the phone records supported them. See Rudnitskyy
v. State of Oregon, 303 Or App 549, 556, 464 P3d 471 (2020)
(“to show that counsel’s performance was constitutionally
inadequate, * * * petitioner must show that any reasonable
attorney would have taken the steps that petitioner now
asserts his attorney should have taken”); see also Myers
v. Neal, 975 F3d 611, 621 (7th Cir 2020), cert den, ___ US
___, 141 S Ct 2507, 209 L Ed 2d 540 (2021) (explaining that
“[m]aking false promises about evidence in an opening
statement” was “a clear instance of deficient performance”).
We are cognizant that the constitutional standard
“allows for tactical choices that backfire, because, by their
nature, trials often involve risk.” Johnson, 361 Or at 702
(internal quotation marks omitted). Here, defense counsel
relied on sworn testimony from the first trial, and counsel’s
preparation for the second trial may have been somewhat
rushed given petitioner’s exercise of his right to a speedy
trial. Nevertheless, when defense counsel relied on an
380 Allen v. Miller
argument in his opening statement about what the phone
records would show, we think that any reasonable attorney
would have checked the records. Indeed, when petitioner’s
attorney made the claim, the prosecutor was able to identify
the error relatively quickly, which suggests that it would
not have been burdensome for petitioner’s attorney to also
check the phone records, rather than relying on what others
had said about them. See Farmer v. Premo, 363 Or 679, 690,
427 P3d 170 (2018) (for a tactical decision “to be considered
an exercise of professional skill and judgment, [it] must be
grounded on a reasonable investigation” (internal quotation
marks and citation omitted)).
Nevertheless, turning to the second element of a
claim of inadequate assistance, we conclude that the postconviction court did not err in determining that petitioner
failed to show prejudice. Although the mistake might have
made the jury somewhat more distrustful of petitioner and
his attorneys, we think that its impact must have been
minor in relationship to the whole trial. See Derschon, 252
Or App at 474 (in assessing prejudice from inadequate assistance of counsel, the court must consider the totality of the
circumstances). To explain why, we summarize additional
facts presented to the jury during petitioner’s second trial.
At the time of the shooting, two officers from a K-9
unit happened to be training a dog nearby when they heard
the gunshots. One of them saw a car enter an apartment
complex without its headlights on. The officers saw three
people walk away from the car, but the officers lost sight of
them. The officers used the dog to track their scent, which
led them to an apartment in which two women lived, Fair
and Watson.
Believing that the persons in the apartment may
have been involved in a shooting, the officers set up a perimeter around the apartment. Fair’s mother came to the scene
and worked with officers to get Fair, Watson, and Fair’s
baby out of the apartment. The three men eventually left
the apartment and were taken into custody. When police
searched the apartment, they found three guns. An autopsy
and ballistics analysis revealed that those guns were used
to shoot the victim.
Cite as 350 Or App 373 (2026) 381
During the second trial, the state offered evidence
from Fair, who lived in the apartment where the three men
had gone after the shooting.2 Fair admitted that, on the
night of the murder, she drove petitioner, Lomax, and Riley
to the victim’s home to buy marijuana. When they arrived,
petitioner, Lomax, and Riley got out of the car and walked
away. It was around 11:30 p.m. A few minutes later, Fair
heard gunshots, and she saw the three men running back to
her car. They got in the car, and petitioner told Fair to “Go, go, go.” Petitioner told Fair to turn off the lights on the car, and she drove them back to her apartment. Fair went inside,
and the three men stayed outside for a minute or two before
also going inside.
When the police searched Fair’s apartment, they
found three guns. It was later determined that they were
the guns used to shoot the victim. Based on the nature of
the victim’s wounds, a criminalist testified that the three
guns were fired from different positions, indicating three
shooters. Allen II, 311 Or App at 456.
One of the three guns recovered was a .380-caliber handgun, and the state offered evidence connecting that
gun to petitioner. Police found a bag of .380-caliber bullets
in Fair’s apartment, and Fair testified that she had seen
petitioner take it out of his pocket while he was in her apartment after the shooting. The same gun had been used in
four shootings in the City of Portland in prior months. There
was evidence that two of those shootings were by members
of the “Hoover” gang, which was a gang that petitioner was
affiliated with. Indeed, there was evidence that petitioner
and some members of the Hoover gang formed a subset, or
“clique,” of the gang called HMF.
The state offered evidence that petitioner was wearing red on the night of the murder, which was consistent
with a description of the person seen by the victim’s domestic partner. In Fair’s apartment, police found a red baseball
cap and a sweatshirt with a red stripe on it. The sweatshirt
had been soaked in Pine-Sol. In his testimony, petitioner
2
At petitioner’s second trial, Fair testified that she no longer had any memory of the incident, so police played an audio recording of her testimony from the first trial.
382 Allen v. Miller
admitted that he was wearing the baseball cap and sweatshirt on the night of the shooting, and there was also evidence that Lomax and Riley were not wearing red clothes
that night.
While he was in custody following the murder, petitioner offered an inmate $10,000 to kill Fair, telling the
inmate that, without Fair’s testimony, the state “couldn’t
prove him guilty * * * of anything.” Petitioner told the inmate that he and two others shot at the victim, but petitioner did
not know which shots had hit the victim.
Another inmate also testified that petitioner confessed to him that petitioner had shot the victim.3 According
to the second inmate, petitioner said that Fair drove him to
the victim’s house and, when the victim came outside, petitioner shot him. Petitioner said he got back in the car, went
to Fair’s house, and he “tried to change his clothes * * * and wipe off the pistol.”
In reviewing the evidence, we recognize that “we
must be cautious about saying that the state’s evidence was
so strong as to preclude any significant chance of acquittal, regardless of counsel’s performance.” Mitchell v. State
of Oregon, 300 Or App 504, 515-16, 454 P3d 805 (2019)
(internal quotation marks omitted). Even so, considering
the evidence presented during the second trial, we are not
persuaded that trial counsel’s mistake about the time of the
phone calls could have tended to affect the outcome. See
Derschon, 252 Or App at 476-77 (concluding that trial counsel’s error did not affect the result because there was ample
evidence of the petitioner’s guilt).
Here, there is no dispute that petitioner was with
Lomax and Riley on the night of the murder. Instead, petitioner testified that when they parked down the street from
the victim’s house, only Lomax and Riley went to the house,
while petitioner stayed by the car. But that account is contradicted by Fair’s testimony, who testified that all three of them walked away from her car and minutes later she heard
gunshots and then saw the three of them running back to
3
Like Fair, the second inmate also did not remember speaking with petitioner, so the state played an audio recording of his testimony from the first trial. Cite as 350 Or App 373 (2026) 383
her car. It is contradicted by the testimony of the victim’s
domestic partner, who saw someone on the porch wearing
red and DNA evidence connected petitioner to the red baseball cap. Indeed, petitioner admitted that he was wearing
the cap and sweatshirt that evening, and he testified that
he gave the sweatshirt to Riley to soak in Pine-Sol while at
Fair’s apartment.
Petitioner claimed that he did not participate in the
shooting, and the defense theory was that Riley must have
used two guns, but that account was inconsistent with the
testimony of a criminalist, who explained that, based on
the victim’s wounds, three guns were fired from different
positions, indicating three shooters. And Fair testified that
she saw petitioner with a bag of .380-caliber bullets in her
apartment, which is the caliber of one of the guns used to
shoot the victim, and that gun was used in other shootings
by members of the same or related gangs.
There was evidence that petitioner sold marijuana
as a source of income, and although he testified that he did
not sell marijuana in Oregon, the fact that he sold marijuana was relevant to whether he had a motive to kill the
victim, who was purportedly selling marijuana at a low price.
And perhaps most damaging, petitioner offered an inmate
$10,000 to kill Fair. On the stand, petitioner acknowledged
that he had said some “angry things” to the inmate about
Fair because, according to petitioner, Fair had lied about petitioner’s involvement in the murder. At his second trial, petitioner sought to discredit the inmate’s testimony,4 but petitioner never denied offering the inmate money to kill Fair.
Indeed, petitioner admitted that a jury in a prior proceeding
had found him guilty of attempted aggravated murder, in
part based on his “conversations” with the inmate about Fair.
Although petitioner also sought to discredit the testimony of
a second inmate, who claimed that petitioner had also confessed to him, that was additional evidence supporting the
state’s theory that petitioner was one of the shooters.
In assessing the prejudice caused by the mistake
about the phone records, we think it is also relevant that the
4
The inmate had testified that petitioner told him the victim had been “pistol-whipped,” but the medical evidence did not show that.
384 Allen v. Miller
parties sought to address the mistake during the second trial. The state called the investigator as a witness during the second trial, and she explained that she had made a mistake
during her testimony in a prior proceeding. And petitioner
explained that when he heard the investigator’s testimony in
the prior proceeding, petitioner had mistakenly recollected
that he had received calls at 11:38 p.m. because of all the
“running and commotion” around the time of the shooting.
Thus, we accept that it was a mistake for petitioner’s attorney to claim during petitioner’s opening statement
that the phone records would show that petitioner was not
with Lomax at the time of the shooting. But we are not persuaded that the time of the two phone calls was, as petitioner suggests, “the central defense theory.” For example,
during petitioner’s opening statement, defense counsel also
sought to explain petitioner’s gang membership, and defense
counsel also tried to discredit the testimony of Fair and an
inmate, to argue that Riley had used two guns because one
of the other guns had jammed, and to argue that petitioner
did not sell marijuana in Oregon.
Indeed, considered in the context of the trial as a
whole, whether there had been two phone calls between
petitioner and Lomax at the time of the murder was an
ancillary issue, as shown by the fact that the first jury found petitioner guilty of murder even accepting that those calls
had been made. And it is not surprising that the prosecutor
would seek to capitalize on defense counsel’s mistake after it was discovered during the second trial. Nevertheless, when
we consider the mistake in relation to the ample other evidence presented during the second trial, including evidence
showing that petitioner was with Lomax and Riley on the
night of the murder, that petitioner was wearing red, that
three guns had been used to kill the victim, that petitioner
had bullets matching the caliber of one of the guns, and that
petitioner had offered an inmate money to kill Fair, we conclude that counsel’s deficient performance could not have
tended to affect the jury’s determination that petitioner was
guilty of murder. See Moser v. Lampert, 200 Or App 78, 83,
112 P3d 482, rev den, 339 Or 406 (2005) (determining, in
a post-conviction case, that the presence or nonpresence of
Cite as 350 Or App 373 (2026) 385
certain testimony would not have changed the jury’s verdict
given other overwhelming evidence presented at trial). The
post-conviction court did not err in determining that petitioner failed to show prejudice, and we affirm on that basis.
B. The post-conviction court did not err in determining that
trial counsel did not provide inadequate assistance by
failing to preserve an argument about the admissibility
of propensity evidence.
Turning to petitioner’s second assignment of error,
petitioner argues that “his trial counsel rendered ineffective assistance by failing to challenge the propensity bases
for admission of other-acts evidence.” To place that argument in context, we begin with an account of what occurred
during petitioner’s second trial.
At his second trial, the court addressed arguments
about the admissibility of evidence of petitioner’s gang affiliations and prior shootings involving the .380 caliber handgun.
Allen II, 311 Or App at 457. Petitioner offered to stipulate
“that he was a member of a gang, that he knew the other two
suspects as fellow gang members, and that the .380 handgun
had been in the possession of another gang member about ten
days prior to H’s murder.” Id. Petitioner argued that, given
those stipulations, much of the state’s evidence regarding his gang affiliations would be cumulative and unduly prejudicial.
Id. For example, he challenged the admissibility of photos of
his tattoos, a photo of petitioner wearing the red hat, and
photos of petitioner and one of the shooters displaying gang
signs. Id. Although the trial court limited some of the evidence relating to petitioner’s gang membership, it ruled that
most of it was relevant and admissible. Id. at 458.
On direct appeal, we affirmed, determining that
the trial court did not abuse its discretion in admitting the
evidence under OEC 403. Allen II, 311 Or App at 458-59.
Despite petitioner’s offers to stipulate,
“[t]he state provided an explanation for each item of evidence detailing why the probative value went beyond that
of defendant’s proposed stipulated facts. According to the
state, its proffered evidence demonstrated the extent of
defendant’s commitment to the gang, his commitment to a
386 Allen v. Miller
specific subset of the gang, the depth of his relationship with
the other suspects, the improbable prospect that defendant
was just an innocent bystander, his financial interest in the
gang, and the likelihood that defendant himself procured
the gun through the gang. As to each matter, the trial court
found that the state had carried its burden of establishing that the challenged evidence retained probative value
beyond the simple facts in defendant’s stipulations.”
Id. at 462 (footnote omitted). We also affirmed the trial
court’s determination that the probative value of each item
of evidence was not outweighed by the danger of unfair prejudice. Id. at 463.
In addition, on direct appeal, we rejected as unpreserved petitioner’s argument that the challenged evidence
was inadmissible propensity evidence. Id. at 459. We
explained that, in the trial court, petitioner’s “arguments
were limited to whether his proposed stipulations rendered
the other evidence impermissibly prejudicial.” Id.
In the post-conviction court, petitioner argued that
trial counsel was deficient by failing to preserve the issue of whether the evidence was inadmissible because it relied on
propensity reasoning. The post-conviction court denied the
claim:
“Petitioner did not prove that his trial attorney failed to
exercise reasonable professional skill and judgment in failing to adequately preserve for appeal a meritorious propensity evidence issue. The petitioner has not proven that the
evidence in question was offered for propensity purposes.
At trial, Petitioner conceded that some of the challenged
photos were relevant. They were admissible for purposes
beyond showing Petitioner’s gang membership. The Court
of Appeals held that the additional photos were admissible
for purposes not covered by the stipulation and thus were
properly admitted. Petitioner did not prove that all reasonable trial attorneys would have objected to the photos as
improper propensity evidence.
“Petitioner has also failed to prove prejudice. Petitioner
has not proven that an objection to the evidence based on
the allegation that it was improper propensity evidence
would have had merit either at the trial court or on appeal.”
Cite as 350 Or App 373 (2026) 387
On appeal from the post-conviction court, petitioner
argues that “[a]t least some of the challenged evidence relied on impermissible propensity reasoning and would have
been inadmissible, had petitioner properly objected.” For
the reasons explained below, we are not persuaded by that
argument.
On appeal, petitioner’s arguments concern two categories of evidence: (1) the evidence of four prior shootings
using the .380 caliber handgun, and (2) evidence of petitioner’s gang affiliations more generally, including photos of petitioner.
Starting with evidence of the prior shootings using
the .380 caliber handgun, we do not agree with petitioner’s
argument that defense counsel should have objected to the
evidence on propensity grounds because the evidence was
not “other acts evidence.” OEC 404(4) provides that, in criminal cases, evidence of “other crimes, wrongs or acts by the
defendant” is generally admissible if relevant. (Emphasis
added.) Here, there was no suggestion that petitioner was
the shooter in the prior incidents involving the .380 caliber handgun, so that evidence was not “other acts evidence”
within the meaning of OEC 404(4). Instead, evidence of the
prior shootings, at least two of which involved associates of
petitioner, was used to show how petitioner gained access to
the handgun. Allen II, 311 Or App at 457.5
Turning to petitioner’s contentions regarding evidence of his gang affiliations more generally, including
photos of petitioner, we conclude that petitioner fails to
demonstrate that it was unreasonable for his attorneys not
to object to that evidence as relying on propensity reasoning. At his second trial, petitioner’s attorneys made a strategic decision to offer to make stipulations about his gang
affiliations, and then to object to much of the gang evidence
5
To the extent that petitioner argues that his attorneys should have objected to “[d]etails regarding the [prior] shootings,” petitioner did not make that argument in the post-conviction court, so we agree with the superintendent that the argument was not preserved, and we do not consider it. See Hale v. Belleque, 255 Or App 653, 660, 298 P3d 596, adh’d to on recons, 258 Or App 587, 312 P3d 533 (2013), rev den, 354 Or 597 (2013) (“Preservation principles apply in the context of post-conviction relief and, as a general rule, arguments not made to the postconviction court in support of a claim will not be considered on appeal.”). 388 Allen v. Miller
that the state sought to admit as cumulative and prejudicial. Allen II, 311 Or App at 457. In our view, that strategic decision was reasonable. We must bear in mind that,
at his second trial, petitioner did not deny that he drove
with two other persons who were gang members to the victim’s house; instead, he sought to create a reasonable doubt
about whether he participated in shooting the victim. Given
that the victim was shot by at least two others who were
gang members, it was inevitable that the jury would hear
some evidence of petitioner’s gang affiliations, so the decision to develop a defense strategy that sought to limit that
evidence was reasonable. See Gorham, 332 Or at 567 (a
reviewing court must not “second-guess” a lawyer’s reasonable tactical decisions).
Although we need not reach the second element of
petitioner’s inadequate assistance claim, we note that “[t]o
establish prejudice on a claim based on a trial counsel’s failure to object to the admission of evidence, a petitioner must
establish that the objection would have been well taken
when the criminal case was tried.” Logan v. State of Oregon,
259 Or App 319, 327, 313 P3d 1128 (2013), rev den, 355 Or
142 (2014). “The petitioner must then establish that, given
the totality of the circumstances, the admission of the objectionable evidence had a tendency to affect the jury’s verdict.” Id.
Here, if trial counsel had made an objection to evidence of other shootings involving the .380 caliber handgun,
or gang evidence more generally, as inadmissible propensity evidence, petitioner fails to demonstrate that the objection would have succeeded. For example, during petitioner’s
opening statement and in his testimony on direct examination at trial, petitioner himself acknowledged that he was a
gang member, which suggests the trial court was not likely
to have sustained an objection to the admissibility of gang
evidence on propensity grounds. In addition, after admitting gang evidence at trial, the trial court instructed the
jury not to use it as propensity evidence:
“You have heard evidence the [petitioner] has some association and involvement with people identified as belonging
to gangs. This evidence is not to be used as evidence that
Cite as 350 Or App 373 (2026) 389
because of that association he was more likely to engage
in criminal activity or more likely to engage in the kind
of behavior some people believe gang members engage in.”
“As a matter of law, we presume that the jurors followed
those instructions absent an overwhelming probability that
they were unable to do so.” State v. Langley, 363 Or 482, 526, 424 P3d 688 (2018), adh’d to as modified on recons, 365 Or
418, 446 P3d 542 (2019), cert den, ___ US ___, 141 S Ct 138,
207 L Ed 2d 1081 (2020). Thus, considering the record before
us, petitioner has not shown he was prejudiced by trial counsel’s failure to object to the admission of evidence of his gang affiliations as propensity evidence. And, for similar reasons, petitioner has also failed to show he was prejudiced by the
failure to object to evidence of other shootings involving the .380 caliber handgun.6 We therefore affirm on the second
assignment of error.
Affirmed.
6
To the extent that petitioner means to separately challenge some of the prosecutor’s statements about petitioner made in closing, those arguments were not sufficiently made in the post-conviction court, so we do not address them. See Zyst v. Kelly, 338 Or App 597, 607, 566 P3d 1121, rev den, 374 Or 188 (2025) (rejecting arguments that petitioner failed to preserve in the post-conviction court).