SANCHEZ PEREZ v. KELLY (2021)

Petitioner seeks post-conviction relief from several convictions relating to the murder of a member of a rival gang. Petitioner argues that, because he and another man were involved in the shooting, the jury was required to agree on a theory of liability: whether petitioner was the principal or an accomplice to the crime. Because trial counsel did not request a jury concurrence instruction or that the state elect a theory of liability, petitioner alleges counsel was constitutionally inadequate and ineffective. We conclude that the post-conviction court correctly rejected this claim because, assuming trial counsel was deficient, petitioner was not prejudiced. See State v. Munoz, 270 Or. App. 490, 500, 348 P.3d 296, rev. den., 357 Or. 596, 358 P.3d 1002 (2015) (concluding that failure to give a concurrence instruction was harmless when the competing factual scenarios both necessarily supported principal liability).

Petitioner next contends that trial counsel was ineffective for failing to object as hearsay to two statements relating to the eyewitness's knowledge of the identity of the shooter. However, those two statements were not offered for their truth; one was offered to explain why one of the witnesses did not come forward, and the other was offered to refute an assertion about how one of the witnesses learned the shooter's identity. Thus, they were not hearsay. See OEC 801(3) (defining hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted”). Therefore, the post-conviction court correctly concluded that trial counsel was not ineffective for failing to object on that basis.

Affirmed.

PER CURIAM