Randant v. Cain

468                   March 5, 2025               No. 190

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

             DALE RICHARD RANDANT,
                 Petitioner-Appellant,
                           v.
                      Brad CAIN,
                   Superintendent,
          Snake River Correctional Institution,
                Defendant-Respondent.
             Malheur County Circuit Court
                 08026402P; A174595

  Erin K. Landis, Judge.
  Submitted March 18, 2024.
   Jedediah Peterson and O’Connor Weber, LLC, filed the
brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin
Gutman, Solicitor General, and Rebecca M. Auten, Assistant
Attorney General, filed the brief for respondent.
  Dale Randant filed the supplemental briefs pro se.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
  HELLMAN, J.
  Affirmed.
Nonprecedential Memo Op: 

 (2025)                                 469

           HELLMAN, J.
         Petitioner appeals from a judgment that denied his
petition for post-conviction relief, which raised claims that
his trial counsel provided inadequate and ineffective assistance of counsel. On appeal, he raises eleven assignments of
error and five pro se assignments of error.1 For the reasons
below, we affirm.
       We restate the relevant procedural facts from the
Supreme Court’s opinion in State v. Randant, 

, 

 (2006), cert den, 

 (2007).
In 1997, the state alleged that petitioner had kidnapped and
murdered his employer. Id. at 66.
    “[Employers] suspected that [petitioner] had been taking money from their business. One day, [petitioner] and
    [the victim] left the business together. Only [petitioner]
    returned. Eight days later, the police found [the victim’s]
    body on Parrett Mountain. He had been shot, and his
    body had been hidden several feet off the road in some
    underbrush.”
Id. After his arrest, petitioner made incriminating statements and police located incriminating evidence in petitioner’s girlfriend’s minivan. Id. at 67-68. “[Petitioner] filed a
pretrial motion to suppress the statements that he had made
to [police]. The trial court denied the motion.” Id. at 69.
         Petitioner was tried in 2000. “The jury found [petitioner] guilty of multiple counts of aggravated murder, murder, kidnapping, and being a felon in possession of a firearm.
At sentencing, the jury declined to impose the death penalty but found that [petitioner] should serve a life sentence
without the possibility of parole.” Id. at 69-70. On appeal,
we “accepted the state’s concession that the trial court
    1
      In his supplemental pro se brief, petitioner requests that we review all of
the claims presented in his post-conviction petition. We decline to do so. ORAP
5.92(2) requires a supplemental pro se brief to “identify questions or issues to be
decided on appeal as assignments of error identifying precisely the legal, procedural, factual, or other ruling that is being challenged.” Apart from the issues
specifically assigned as error, petitioner has not done so, and we will not make his
argument for him. See Beall Transport Equipment Co. v. Southern Pacific, 

, 700 n 2, 

 (2003) (“[I]t is not this court’s function to speculate
as to what a party’s argument might be. Nor is it our proper function to make or
develop a party’s argument when that party has not endeavored to do so itself.”).
470                                          Randant v. Cain

had erred in failing to merge some of the convictions and
remanded the case for the trial court to enter a corrected
sentence” and otherwise affirmed. Id. at 70.
          Thereafter, petitioner pursued post-conviction
relief, claiming that he received constitutionally inadequate
and ineffective representation under both the state and federal constitutions. The post-conviction court denied relief on
all of petitioner’s claims. This appeal followed.
         We review the post-conviction court’s decision for
legal error. Green v. Franke, 

, 

(2015). “A post-conviction court’s findings of historical fact
are binding on this court if there is evidence in the record to
support them.” 

         A petitioner claiming inadequate assistance of counsel under Article I, section 11, of the Oregon Constitution
has the burden “to show, by a preponderance of the evidence, facts demonstrating that trial counsel failed to exercise reasonable professional skill and judgment and that
petitioner suffered prejudice as a result.” Trujillo v. Maass,

, 

 (1991) (“Only those acts or
omissions by counsel which have a tendency to affect the
result of the prosecution can be regarded as of constitutional
magnitude.” (Internal quotation marks and brackets omitted.)). Under the federal standard, a petitioner is required
to “show that counsel’s representation fell below an objective
standard of reasonableness” and that, as a result, petitioner
was prejudiced. Strickland v. Washington, 

, 687-
88, 

, 

 (1984). As the Oregon
Supreme Court has recognized, those standards are “functionally equivalent.” Montez v. Czerniak, 

, 

, adh’d to as modified on recons, 

, 

 (2014).
        Jury concurrence instruction. Petitioner’s first and
second assignments of error in both his opening brief and
supplemental pro se brief challenge the post-conviction
court’s denial of his claims that counsel provided inadequate and ineffective assistance by failing to “instruct the
jury that, in order to convict [petitioner] of kidnapping, the
requisite number of jurors must agree on the same factual
Nonprecedential Memo Op: 

 (2025)             471

occurrence” and by failing to request a concurrence instruction on kidnapping.
         In his opening brief, petitioner also argues that
“trial counsel was ineffective for failing to request and failing to object to the lack of a jury concurrence instruction
regarding the element of taking the victim from one place
to another.” He further argues that counsel’s failure to do so
prejudiced him.
         “In reviewing the adequacy of trial counsel’s representation, a post-conviction court must consider the lawyer’s
perspective at the time, without the benefit of hindsight.”
Antoine v. Taylor, 

, 

 (2020),
aff’d, 

, 

 (2021) (internal quotation
marks omitted). The law at the time of petitioner’s trial did
not require the trial court to give a concurrence instruction
for the state’s alternative theories. See State v. Ashkins, 

, 

 (2015) (“[N]one of this court’s previous decisions, including [State v. Sparks, 

, 

, cert den, 

 (2004)], involved the precise
situation at issue here, to which we now turn.”). Indeed, the
Supreme Court did not address the question of concurrence
instructions when the indictment “charged a single occurrence of each offense, but the evidence permitted the jury to
find any one or more among multiple, separate occurrences
of that offense involving the same victim and the same perpetrator” for several years. Id. at 659.
         Rather, at the time of petitioner’s trial, State v.
Houston, 

, 

 (1997), provided the
controlling case law. Houston gleaned from case law “the general rule that juries must agree on the factual occurrences
that constitute the statutorily defined elements of the crime
at issue, even though they need not agree on the evidentiary
bases for their decisions as to those elements.” 

.
We explained that Houston “[was] not a case like [State v.
King, 

, 

 (1993)] or [State v. White, 

, 

 (1992)], in which the state merely
offered alternative evidence of a single factual occurrence.”

 “Instead, … the jury was allowed to base its verdict on
alternative factual occurrences, each of which itself would
be a separate crime.” 

 Thus, the post-conviction court did
472                                           Randant v. Cain

not err when it determined that petitioner “failed to demonstrate that trial counsel was ineffective” because “[a]t the
time of petitioner’s trial, the case law did not clearly require
a concurrence instruction.” 

          In his supplemental pro se brief, petitioner further
argues that the post-conviction court erred when it denied
relief on his claim that trial counsel was inadequate and
ineffective for failing to request an instruction because the
jury was “required … to agree whether the kidnapping
was accomplished by ‘deception’ … [or] ‘simple asportation.’ ” The post-conviction court found that petitioner had
advanced that argument on direct appeal and that, even
though we determined that the trial court erred by failing
to give that instruction, we concluded that the error was
harmless. See State v. Randant, 

,

 (2004), aff’d, 

, 

 (2006),
cert den, 

 (2007). That was so, we explained,
because the jury was instructed on only one theory of the
kidnapping. 

 (“The first theory, that [petitioner]
took the victim from one place to another, was based on evidence that defendant deceived the victim into getting into
the car with him and took the victim to the site where the
murder occurred.”). Thus, we concluded that the unanimous
verdicts “demonstrate[d] that the jury unanimously agreed
that the first theory provided the basis for both aggravated
murder convictions.” 

. Because the error was harmless, petitioner cannot prove he was prejudiced by counsel’s
failure to request such an instruction. The post-conviction
court did not err in denying relief on petitioner’s claims.
          Motion to suppress. In his third through seventh
assignments of error, petitioner argues that the post-conviction court erred when it denied relief on his claims
that counsel was ineffective because he “failed to adequately
litigate, and/or move to suppress evidence seized as a result
of the illegal seizure of petitioner’s minivan” and subsequent
searches of that minivan. On appeal, petitioner argues that
counsel should have “present[ed] a meritorious theory of
suppression, specifically that the minivan had already been
unlawfully seized by the time [petitioner’s girlfriend] consented.” We have reviewed the record and conclude that it
Nonprecedential Memo Op: 

 (2025)             473

supports the post-conviction court’s finding that trial counsel “did file a motion to suppress and adequately litigated
the issues.” Therefore, the post-conviction court did not err
when it denied relief on those claims.
         The prosecutor’s reference to the victim’s death as
“murder.” In his eighth and ninth assignments of error, petitioner argues that the post-conviction court erred when it
denied relief on his claims that counsel was ineffective for
failing “to adequately object to, and/or ask for a curative
instruction, and/or move for a mistrial” and when the prosecutor referred to the victim’s death as a “murder.”
         We do not need to decide whether counsel’s representation fell below constitutional standards because petitioner did not establish any prejudice. Petitioner points to no
authority that existed at the time of his trial that expressly
prohibited the prosecutor from referring to the death as a
“murder.” We agree with the post-conviction court that petitioner’s reliance on State v. Bouse, 

, 

(1953), is misplaced, given the facts of this case. In Bouse,
the defense pursued a theory that the decedent died from
suicide and we concluded that the prosecutor’s use of the
term “murder” significantly and impermissibly undermined
that theory. 

. In contrast, in this case, petitioner admitted that he shot the victim, although he claimed
the homicide was accidental. Moreover, the Bouse record
“reek[ed] with improper, leading, and prejudicial questions.”

.
         Here, as the post-conviction court found, “the prosecution was allowed to ask improper questions without objection twenty-seven times.” However, the court explained that
the improper questions “must be considered in the context
of the entire transcript that totals 7,207 pages.” Moreover,
the court found that the trial court “properly” instructed
the jury “on the prosecution’s burden of proof on multiple
occasions.” Because petitioner did not establish any “resulting prejudice,” Trujillo, 

, or “that there [was] a
reasonable probability that, but for counsel’s unprofessional
errors, the result of the proceeding would have been different,” Strickland, 

, the post-conviction court
did not err when it denied relief on petitioner’s claim.
474                                           Randant v. Cain

          Credibility of other witnesses. In his tenth assignment of error, petitioner argues that the post-conviction
court erred when it denied relief on his claim that trial
counsel was inadequate and ineffective for failing to object
when “the prosecutor question[ed] petitioner about the credibility of other witnesses.” Specifically, petitioner contends
that counsel should have objected when the prosecutor
asked if other witnesses had lied when they gave testimony
that conflicted with petitioner’s testimony. Those questions
were impermissible. State v. Abbott, 

,

 (2015), rev den, 

 (2016) (“[T]he trial
court erred when it allowed the prosecutor to ask defendant,
on cross-examination, whether the police officers and other
state’s witnesses had lied.”). Thus, constitutionally adequate
and effective counsel would have objected to the questions.
         However, petitioner did not establish that he “suffered prejudice” as a result of counsel’s “fail[ure] to exercise
reasonable professional skill and judgment,” Trujillo, 

, or that “there is a reasonable probability that,
but for counsel’s unprofessional errors, the result of the proceeding would have been different.” Strickland, 

. Like in Abbott, “the harm often associated with ‘true
vouching’ inquiries is absent” because the questions did
not “create a risk that the jury would abandon its role in
determining those other witnesses’ credibility.” 

. Rather, the prosecutor’s questions in this case were
intended to undermine petitioner’s credibility. Moreover, as
in Abbott, “the jury had to have been aware of the dramatic
inconsistencies between defendant’s story and the other
witnesses’ testimony,” so the questions “did no more than
emphasize what already must have been clear to the jurors:
that they had been presented with incompatible versions of
what happened.” 

 The post-conviction court did not err in
determining that petitioner failed to prove prejudice, and in
denying petitioner’s claim for relief.
         The state’s closing argument. In his eleventh assignment of error, petitioner argues that the post-conviction
court erred when it denied relief on his claim that trial counsel was inadequate and ineffective for failing to object to the
state’s closing argument. Specifically, petitioner contends
Nonprecedential Memo Op: 

 (2025)             475

that the prosecutor gave “his personal opinion of witnesses’
credibility”—by referring to a witness’s testimony as “truthful”—and his personal opinion about petitioner by referring
to him as “a liar.”
         We need not decide whether counsel should have
objected when the prosecutor called the witness “truthful” because petitioner cannot establish any prejudice.
Immediately before stating that the witness was “truthful,”
the prosecutor stated that the jury was required to “evaluate the witnesses’ testimony.” Immediately following that
statement, the prosecutor stated that the witness’s testimony was consistent with the facts. Thus, when viewed in
the context of the state’s entire closing argument, counsel’s
failure to object to the use of the word “truthful” did not have
“a tendency to affect the result,” Trujillo, 

, nor
does the record demonstrate a “reasonable probability” of a
different outcome, had counsel objected. Strickland, 

.
         In addition, the post-conviction court found that the
prosecutor “did not engage in vouching when she stated the
petitioner was lying” because she “was entitled to make such
arguments where the petitioner’s statements and testimony
were inconsistent and conflicted with the testimony of other
witnesses.” The record supports the trial court’s finding that
the prosecutor’s statements were based on the evidence in
the record and not on the prosecutor’s personal opinion. As a
consequence, those statements were not “true vouching.” See
Abbott, 

 (characterizing “true vouching as
one witness’s testimony that he or she believes that another
witness is or is not credible, which a party offers to bolster
or undermine the veracity of that other witness” (internal
quotation marks omitted)). Because “it is permissible for a
prosecutor to argue that the jury should infer that a witness
is credible based on the evidence in the record, so long as the
prosecutor does not vouch for the witness by interjecting his
or her personal opinion of the witness’s credibility,” the prosecutor was permitted to make those arguments. Heroff v.
Coursey, 

, 

 (2016), rev den,

 (2017). And, because the arguments were based
on the evidence before the jury, counsel’s failure to object
476                                         Randant v. Cain

was not a failure of “reasonable professional skill and judgment,” Trujillo, 

, nor did counsel’s performance
fall “below an objective standard” of reasonable representation. Strickland, 

. The post-conviction
court did not err when it denied relief on petitioner’s claim.
       We now address petitioner’s remaining pro se
assignments of error.
         Motion for judgment of acquittal. In his third pro
se assignment of error, petitioner argues that the post-conviction court erred when it denied relief on his claim that
counsel was ineffective for not filing a motion for judgment
of acquittal (MJOA) on “the aggravated murder charges,
where kidnapping is an element of those crimes,” and on the
kidnapping charges because the kidnapping “was merely
incidental to the accomplishment of murder.” The law at
the time of trial does not support petitioner’s arguments.
Notably, the Supreme Court had explained that “there may
be a separate conviction and sentence for kidnapping only
when it is not incidental to another crime, and it may be
found not to be incidental if the defendant had the intent to
interfere substantially with the victim’s personal liberty.”
State v. Garcia, 

, 

 (1980).
         Petitioner further argues that evidence that he had
moved the victim “10-15 feet” was legally insufficient to
establish that he “intended to interfere substantially with
the victim’s personal liberty” under ORS 163.225. However,
the Garcia court did not announce a minimum distance that
a defendant must move a victim to support a kidnapping
conviction. See 

 Moreover, in State v. Thomas, 

, 

, rev den, 

 (1996), we
affirmed a kidnapping conviction when the defendant moved
the victim about “10 to 12 feet.” Finally, although petitioner
relies on State v. Wolleat, 

, 

 (2005),
that case does not assist petitioner because it was decided
after petitioner’s trial.
         We conclude that the record supports the trial
court’s finding that “the kidnapping could form the predicate offense because there was enough evidence for a jury to
conclude that the kidnapping and homicide were part and
Nonprecedential Memo Op: 

 (2025)               477

parcel of an overall scheme.” As a consequence, that finding
is binding on appeal. See Green, 

. Given the law
at the time of petitioner’s trial, trial counsel’s failure to file
an MJOA on the basis that petitioner alleged did not constitute lack of “reasonable professional skill and judgment,”
Trujillo, 

, nor did it establish that counsel’s
representation “fell below an objective standard of reasonableness.” Strickland, 

. The post-conviction
court did not err in denying relief on petitioner’s claim.
         Bank records. In his fourth and fifth pro se assignments of error, petitioner argues that the post-conviction
court erred when it denied relief on his claims that counsel
was ineffective for failing to file a motion to suppress bank
records and for failing to object to their admission. Petitioner
argues that the state unlawfully obtained the bank records
because the state failed to serve him with the subpoena or
comply with several statutory requirements. Petitioner further argues that the affidavit in support of the court order
to obtain the bank records was based on evidence obtained
from the defective grand jury subpoena. As a consequence,
petitioner argues that trial counsel should have moved to
suppress the records and argued against their admission,
and that counsel’s failure to do so prejudiced him.
         ORS 192.596(2) requires that a party serve a subpoena “upon the customer” of the financial institution.
“ ‘Customer’ means any person … who … is using or has
used the services of [a financial institution].” ORS 192.583(1).
Here, the post-conviction court found that “the sole proprietor listed on the account” was “another individual.” That
finding of fact is supported by the record and binding on
appeal. See Green, 

. Because the state had no
legal obligation to serve a person who was not “the customer”
of the bank account within the meaning of ORS 192.583(1),
the state was not required to serve petitioner with the subpoena. See ORS 192.596(2).
         Further, the post-conviction found that the prosecutor issued a second subpoena with a waiver of service and
that “the records were subsequently obtained pursuant to a
proper subpoena.” Those facts are supported by the record
and binding on appeal. See Green, 

. Thus, even
478                                         Randant v. Cain

if the initial subpoena was invalid, the second subpoena provided a lawful basis to obtain the evidence. See Vaughan v.
Taylor, 

, 

, rev den, 

 (1986) (“The problems were matters of form only, and
[the defendant] could have cured them by issuing a new
and proper subpoena, with appropriate notice, if the bank
had moved to quash the first one.”). Accordingly, petitioner’s
arguments do not persuade us that, at the time of petitioner’s trial, counsel failed to raise a valid basis to suppress
or exclude the evidence. Therefore, trial counsel was not
ineffective for failing to file a motion that would have been
unsuccessful. Davis v. Kelly, 

, 

, rev den, 

 (2020) (“Neither the state nor federal constitution requires counsel to advance a futile objection.”). Because trial counsel’s representation was neither
the result of a failure “to exercise reasonable professional
skill and judgment,” Trujillo, 

, nor did it fall
“below an objective standard of reasonableness,” Strickland,

, the post-conviction court did not err in denying relief on these claims.
        Affirmed.