No. 20	                     June 4, 2015	301

            IN THE SUPREME COURT OF THE
                  STATE OF OREGON

                 KYLE JAMES GREEN,
                  Respondent on Review,
                             v.
                     Steve FRANKE,
                     Superintendent,
            Two Rivers Correctional Institution,
                   Petitioner on Review.
          (CC CV110230; CA A150877; SC S062231)

   En Banc
   On review from the Court of Appeals.*
   Argued and submitted November 3, 2014.
   Ryan Kahn, Assistant Attorney General, Salem, argued
the cause and filed the briefs for petitioner on review.
With him on the briefs were Ellen F. Rosenblum, Attorney
General, and Anna M. Joyce, Solicitor General.
   Jason E. Thompson, Ferder Casebeer French &
Thompson, LLP, Salem, argued the cause and filed the brief
for respondent on review.
   BREWER, J.
   The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed and remanded on
petitioner’s instructional claim, and otherwise is affirmed.




______________
	 * Appeal from Umatilla County Circuit Court, Rick J. McCormick, Senior
Judge. 261 Or App 49, 323 P3d 321 (2014).
302	                                                           Green v. Franke

     Petitioner brought this action for post-conviction relief after his criminal
trial counsel failed to request that the trial court instruct the jury that, in a trial
concerning multiple charges and multiple victims, it must consider the evidence
concerning each alleged victim separately and only as that evidence pertained
to a specific charge or charges relating to that victim. The post-conviction court
did not decide whether failing to request the limiting instruction was inadequate
assistance, but determined that petitioner was not prejudiced because, even if
the limiting instruction had been given, the result would not have been different.
The Court of Appeals reversed, holding that there was no evident downside to
requesting the limiting instruction but the upside was great—the jury would
not convict petitioner based on improper propensity inferences. Held: (1) in light
of Pereida-Alba v. Coursey, 356 Or 654, 342 P3d 70 (2015), the Court of Appeals
applied an incomplete, and therefore erroneous, standard in determining that
petitioner’s trial counsel performed inadequately by failing to request a limit-
ing instruction; (2) the case must be remanded so that the post-conviction court
can determine under the correct standard whether petitioner’s trial counsel per-
formed inadequately in failing to seek a limiting instruction; and (3) in cases
where the effect of inadequate assistance of counsel on the outcome of a jury trial
is at issue, the proper prejudice standard is whether trial counsel’s acts or omis-
sions could have tended to affect the outcome of the case.
    The decision of the Court of Appeals is reversed. The judgment of the circuit
court is reversed and remanded on petitioner’s instructional claim, and other-
wise is affirmed.
Cite as 357 Or 301 (2015)	303

	       BREWER, J.
	       A jury convicted petitioner of eighteen sex offenses
involving nine victims, ages twelve through seventeen.
After an unsuccessful direct appeal, petitioner sought
post-conviction relief, alleging that his trial counsel’s per-
formance had not satisfied the minimum requirements
demanded by the Oregon and United States Constitutions.
Among other claims, petitioner alleged in his pleading that
counsel performed inadequately by failing to request an
instruction directing the jury to consider the evidence con-
cerning each alleged victim separately and only as that evi-
dence pertained to a specific charge or charges relating to
that victim. The post-conviction court entered a judgment
denying post-conviction relief.
	        The Court of Appeals reversed. Green v. Franke,
261 Or App 49, 323 P3d 321 (2014). It reasoned that “there
was no evident downside to requesting such an instruc-
tion; the upside, however, was plain: The jury would have
been prohibited from concluding that petitioner had com-
mitted the charged acts based on a belief that he had a
propensity to commit such acts.” Id. at 58. The Court of
Appeals further concluded that petitioner was prejudiced
by counsel’s omission because the jury was encouraged by
the prosecutor, and permitted by defense counsel’s failure
to obtain a limiting instruction, to rely on impermissible
propensity inferences in its consideration of most of the
charges. Id. at 67-68. We allowed the state’s petition for
review to consider the recurring issues of what a post-
conviction petitioner must show to establish inadequate
performance of counsel and what a petitioner must prove
to establish that counsel’s inadequate performance preju-
diced the petitioner’s case. We now reverse the decision of
the Court of Appeals, and we reverse and remand the judg-
ment of the post-conviction court denying post-conviction
relief on petitioner’s instructional claim while otherwise
affirming that judgment.
         PROCEDURAL HISTORY AND FACTS
	       The state charged petitioner with sex offenses against
nine victims committed over the course of approximately
304	                                                          Green v. Franke

five years.1 The victims were girls ranging in age from 12
to 17 years old. Some of the charges were based on sexual
contact that, although “consensual” in a colloquial sense,
was without lawful consent due to the ages of the victims
(in particular, the charges involving victims KN, MZ, and
CO). But the majority of the crimes were based on either a
theory of forcible compulsion or on lack of consent (specif-
ically, the charges involving victims SB, DH, CH, JA, BB,
and RM).2
	        Before petitioner’s criminal trial, counsel did not
move to sever the charges against petitioner for purposes of
trial. By the time of trial, counsel knew that petitioner had
acknowledged to police and to an underage girlfriend that
he had, in fact, had sex with some of the victims. Petitioner
also admitted to counsel that he had had sex with several of
the victims. Petitioner insisted, however, that those encoun-
ters were consensual, not forcible. Given that information,
counsel did not believe that he could mount a plausible
defense to the charges involving “consensual” sex—that
is, the charges that were based solely on the victims’ ages.
Thus, he decided to concede to the jury that petitioner had
committed the charged crimes against KN, MZ, and CO.
Counsel decided, instead, to focus his efforts on the charges
involving the other victims, all of which depended on
proof that petitioner had engaged in sexual contact either
using forcible compulsion or without their actual consent.
Counsel’s theory on the majority of those charges was that,
although petitioner may have had sex with several of the
girls, he did so only with their consent. Counsel did not

	1
        In particular, petitioner faced trial on five counts of first-degree rape, two
counts of third-degree rape, six counts of second-degree sexual abuse, three
counts of third-degree sexual abuse, one count of third-degree sodomy, and one
count of contributing to the sexual delinquency of a minor.
	2
        Five of the charges (i.e., the first-degree rape charges) involved a theory of
forcible compulsion. The remaining charges all involved sexual conduct that the
state alleged was non-consensual. Although for three charges (those involving
KN and CO and one of the charges involving MZ) the lack of consent was based on
the victims’ ages, for the remaining ten charges, the lack of consent was based on
defendant’s use of “force” only in the sense of exercising physical control over the
victims so that the sexual contact occurred despite their lack of actual consent to
it. See generally State v. Ofodrinwa, 353 Or 507, 532, 300 P3d 154 (2013) (phrase
“does not consent” in sexual abuse statute includes lack of capacity to consent due
to age as well as lack of actual consent).
Cite as 357 Or 301 (2015)	305

concede, however, that petitioner had sex with JA or BB.
His defense to the charges involving those victims was that
no sexual contact occurred.
	        At trial, the state did not argue that evidence relat-
ing to any one of the joined charges was relevant to prove
any other charge. However, all the charges were tried to a
jury in a single trial. The state called each of the victims to
testify about their interactions with petitioner and about
sexual acts that he committed against them. Three of the
victims described consensual sex with petitioner, and the
other six testified that petitioner against their will touched
their sexually intimate parts, caused them to touch his sex-
ually intimate parts, or—in the case of the five first-degree
rape charges—forcibly compelled them to have sexual
intercourse while they either resisted or told him to stop.
The state also called police detectives and other witnesses
to testify about statements that the victims had made to
them.
	       Petitioner’s counsel cross-examined the victims and
other witnesses in an attempt to emphasize evidence show-
ing that any sexual contacts that petitioner had with the
victims were, in fact, consensual. Counsel stressed that type
of evidence on cross-examination even if the charge other-
wise was uncontested.3 Counsel also attempted to persuade
the jury that several of the victims were connected to each
other and, to some extent, that the evidence about their alle-
gations should be considered together. Counsel did that in
two primary ways. First, he pointed out that some of the vic-
tims knew each other, either in general or in how they came
to report their allegations to police. As an example, during
his opening statement, counsel told the jury:
   “I think detectives are going to testify that Detective Fryett
   was making one investigation and Detective Young was
   making another investigation over here, but the majority
   of these girls really do know each other. And it’s—it started
   out that there were two victims, and then [petitioner] was

	3
       For example, counsel cross-examined victims KN, MZ, and CO to ensure
that the jury heard that the encounters were consensual, even though counsel
conceded—given those victims’ lack of capacity to consent due to their ages—
petitioner’s guilt on those charges.
306	                                            Green v. Franke

  on TV, and all of a sudden there’s now nine victims. [The
  prosecutor] said he thinks the evidence is going to show
  that these people didn’t know each other; these girls didn’t
  know each other very much. But I think the testimony is
  going to come out that they really did know each other, a
  lot of them.”
In his closing argument, counsel suggested a possible motive
for a particular victim (JA) to have fabricated a charge of
rape:
  “Does [JA’s allegation] make any sense? I submit that it
  does not, because the rape of her did not happen. I don’t
  know why she’s lying. I don’t have any idea. But I can tell
  you whether all these girls knew each other before, they
  all know each other now. And if you don’t think the detec-
  tives and the Victims’ Assistance [office] have talked to
  these people, that’s nonsense. They’ve talked to these girls,
  they’ve gotten them ready for trial, and they came and
  testified.”
	        The second way in which counsel attempted to con-
nect evidence involving different victims was by contrast-
ing certain victims’ allegations with what other victims had
reported. For example, counsel elicited differences between
the circumstances that CH and SB had reported, and he gen-
erally noted how the reports of some victims did not fit the
“pattern” of what other victims reported. Counsel repeated
that theme in closing argument, telling the jury that RM’s
report was “out of the pattern of what some of these other
folks have said.”
	       For its part, the state emphasized in closing argu-
ment that the resolution of disputed factual issues in the
case required a credibility assessment:
  “Now, in hearing from many of the victims, it’s a matter of
  assessing credibility. And when you go into the jury room
  to deliberate, we’re not asking you to leave your common
  sense outside the door. We ask you to draw upon your expe-
  rience as human beings in assessing credibility.”
The prosecutor then explained why the jury should find each
victim credible. Referring to evidence that petitioner had
attempted to influence the testimony of certain witnesses,
the prosecutor argued that,
Cite as 357 Or 301 (2015)	307

   “when you look at [petitioner’s] statements during the
   course of this trial, and of the investigation, and his tam-
   pering with witnesses, they really give you insight into his
   sexual assaults. And they parallel his predatory nature.”
The prosecutor continued:
   “He’s assaulting victims while they’re sleeping and vulner-
   able. [SB] and [DH]. He takes the victims by swift attack.
   [RM], [JA], and [CH]. He takes the victims through manip-
   ulation or subtle forms of coercion. [BB] and [KN]. He offers
   reassurance to each victim, or tries to make them believe
   that they want it.”
	         The jury ultimately convicted petitioner of all of the
charges, including the charges based on a theory of forcible
compulsion and lack of actual consent. After an unsuccessful
direct appeal, petitioner filed this action for post-conviction
relief, asserting several claims of inadequate assistance of
trial counsel. The amended petition for post-conviction relief
set out 12 allegations specifying the ways that petitioner
claimed his counsel’s representation in his criminal trial
was constitutionally inadequate. As noted, in the claim that
is pertinent on review, petitioner alleged that trial counsel’s
performance was inadequate because he
   “failed to request that the trial court instruct the jury that
   it was required to consider the evidence concerning each
   alleged victim separately and only as that evidence related
   to a specific charge or charges relating to that specific
   alleged victim.”
	        In response to petitioner’s pleaded claims, the state
obtained two affidavits from petitioner’s trial counsel. In
general, the affidavits described the challenges that coun-
sel faced in defending the various charges in the criminal
case, explained counsel’s investigative efforts, and set out
counsel’s reasons for actions that counsel did and did not
take in the course of his investigation before trial and in his
representation at trial. On the allegation raising counsel’s
failure to request a limiting instruction, counsel explained
that “the Judge gave instructions about each and every
count that the State must prove” and the judge “read each
and every count and told the jury they had to find on every
count, so I don’t know what counsel is saying.” (Emphasis
308	                                                       Green v. Franke

added.) Counsel opined (using a rape charge as an example)
that the instructions were sufficient.4
	        Six months after petitioner filed the amended
petition, and ten days before trial, petitioner filed a trial
memorandum. Although the bulk of the 53-page memoran-
dum was devoted to the other allegations of his petition,
it included an argument that clarified petitioner’s claim
based on counsel’s failure to ask for a limiting instruction.
The memorandum urged that an instruction similar to the
one approved in State v. Kitzman, 129 Or App 520, 529,
879 P2d 1326 (1994), aff’d in part and rev’d in part on other
grounds, 323 Or 589, 920 P2d 134(1996), would have been
appropriate and could “have helped alleviate the potential
for the jury to find petitioner guilty of all the charges sim-
ply because, with nine separate victims, it believed that he
had a propensity for sexually abusing minor females.”5 That
instruction provided:
    	 “[Defendant] has been charged with several unrelated
    counts in a single indictment. A separate crime is charged
    in each count of the Indictment. Each charge and the evi-
    dence pertaining to it must be considered separately by the
    jury.
    	   “* * * * *
    	 “In other words, it is your duty to consider the evidence
    solely for the charge it pertains to and no other charge.”

Kitzman, 129 Or App at 529 (alterations in original).6
	4
       The other affidavit from counsel did not refer to the claim at issue.
	5
       OEC 404(3) provides:
    	    “Evidence of other crimes, wrongs or acts is not admissible to prove the
    character of a person in order to show that the person acted in conformity
    therewith. It may, however, be admissible for other purposes, such as proof
    of motive, opportunity, intent, preparation, plan, knowledge, identity, or
    absence of mistake or accident.”
	6
      In Kitzman, as in this case, the defendant was charged with multiple sex
offenses committed against several underage victims. The Court of Appeals
rejected the defendant’s argument that the post-conviction court had erred in
denying his motion to sever the charges for trial, in part, because that court had
mitigated the prejudicial effect that is inherent in admitting evidence of crimes
against different victims “by giving defendant’s instruction that he was charged
with unrelated incidents and that each charge, and the evidence pertaining to it,
must be considered separately.” Kitzman, 129 Or App at 530.
Cite as 357 Or 301 (2015)	309

	       Ten days later, the state filed and served its own
trial memorandum. The state’s response to the claim at
issue consisted of the following:
    	 “The State incorporates by reference the two affida-
    vits of [trial counsel] that respond to petitioner’s claims.
    As trial counsel’s affidavits confirm, petitioner’s claims
    lack merit. The requests for jury instructions by the State
    and trial counsel covered the key elements of petitioner’s
    case. Petitioner will fail to prove that prejudice resulted
    from counsel not requesting one additional instruction. To
    be successful at this post-conviction level, petitioner would
    have to prove that: (1) petitioner had a legal basis to request
    an additional instruction; (2) petitioner actually wanted
    the instruction; (3) the trial court would have allowed the
    request and instructed the jury accordingly; (4) the one
    additional instruction would have altered any juror’s vote,
    and; (5) the one additional instruction would have caused
    enough jurors to change their votes so that the jury ver-
    dicts would have been different. Petitioner cannot satisfy
    his burden of proof on these issues, and therefore cannot
    show any trial counsel deficiency or resulting prejudice.”
(Internal citations to record omitted.)7
	        Like many post-conviction cases, this case was
tried in the main on a documentary record.8 Neither party
called trial counsel as a witness, nor did they present any
further sworn statement from him. Instead, trial counsel’s
“testimony” consisted solely of his pretrial affidavits. The
hearing itself was short. At the hearing, post-conviction
counsel focused on other claims in the petition and did not
mention the failure to request a limiting instruction. At
the conclusion of the hearing, the post-conviction court
rejected each of petitioner’s claims, commenting on each
one only briefly. With respect to counsel’s failure to request
a limiting instruction, the court said: “I don’t think it

	7
      The state did not argue before the post-conviction court or the Court of
Appeals that petitioner’s propensity argument was beyond the scope of his
pleaded claim or that the state was unfairly surprised by the elaboration of that
argument in petitioner’s trial memorandum.
	8
       ORS 138.620(2) provides, in part:
    “If the petition states a ground for relief, the court shall decide the issues
    raised and may receive proof by affidavits, depositions, oral testimony or
    other competent evidence.”
310	                                                       Green v. Franke

would have changed anything at all. Clearly, I think that
was a proper instruction. Again, I don’t think the—the
result would have been any different.” In short, the post-
conviction court did not decide whether or not counsel’s
performance was inadequate with respect to the instruc-
tional claim; instead, the court concluded that petitioner
could not prevail on that claim because he had failed to
establish prejudice.
	        Petitioner appealed the ensuing judgment deny-
ing post-conviction relief. The Court of Appeals affirmed
with respect to all but one of petitioner’s claims; as noted,
it reversed on the claim involving trial counsel’s failure to
request a limiting instruction. This court’s decision in State
v. Leistiko, 352 Or 172, 282 P3d 857, adh’d to as modified
on recons, 352 Or 622, 292 P3d 522 (2012), was central to
the Court of Appeals’ holding. In Leistiko, this court held,
among other things, that evidence of other sexual crimes is
not relevant under OEC 404(3) to prove a defendant’s pro-
pensity to commit a charged offense. Leistiko, 352 Or at 180.
Based on that holding, the Court of Appeals concluded in
this case that petitioner’s trial counsel should have identi-
fied the “great and obvious danger” that the jury would rely
on impermissible propensity inferences in petitioner’s case.
Green, 261 Or App at 58.9
	        The court ultimately concluded that counsel per-
formed inadequately because “there was no evident down-
side to requesting such an instruction.” Id. (citing Pereida-
Alba v. Coursey, 252 Or App 66, 71, 284 P3d 1280 (2012),
rev’d, 356 Or 654, 342 P3d 70 (2015)). The court arrived at
that conclusion without expressly considering how the limit-
ing instruction would have meshed, or potentially conflicted,
	9
       That danger, the court concluded, was greater due to comments that the
prosecutor made during closing argument that the court believed suggested pro-
pensity purposes for the evidence. Id. at 57-58. In particular, the court empha-
sized the prosecutor’s statement:
    “What are the chances that you’re going to have nine people coming before
    you, six disclosing nonconsensual sexual touching, with the varied back-
    grounds, with the same theme of manipulation, deceit, and coercion? What
    are the chances?”
Id. In another part of the opinion, the court referred to the prosecutor’s state-
ments about petitioner’s “predatory nature” and about petitioner’s “patterns of
sexual assault.” Id. at 54.
Cite as 357 Or 301 (2015)	311

with counsel’s defense strategy at trial. That comes as no
surprise, because (as discussed in greater detail below) nei-
ther party addressed either before the post-conviction court
or the Court of Appeals the effect, if any, of counsel’s trial
strategy on the adequacy of his performance in failing to
request a limiting instruction.
	         Turning to the issue of prejudice, the Court of
Appeals—again, using Leistiko as an example—noted the
importance of instructions limiting a jury’s use of evidence
in “joined proceedings.” Id. at 59. The court concluded that
the absence of a limiting instruction prejudiced petitioner
with respect to all of his convictions, except the ones as to
which he admitted guilt. Without a limiting instruction, the
court reasoned, the jury “may well have,” was “permitted”
to, or was “invited to” make improper inferences about peti-
tioner’s propensity to commit sex offenses against one under-
age victim based on evidence that was admissible only with
respect to other charges involving different victims. Id. at
63-67. On that ground, the Court of Appeals held that trial
counsel’s deficient performance had a tendency to affect the
outcome of the case and, therefore, petitioner had suffered
prejudice. See id. at 59.
  LEGAL PRINCIPLES AND STANDARD OF REVIEW
	        Post-conviction relief is warranted when there has
been a “substantial denial” of a petitioner’s “rights under the
Constitution of the United States, or under the Constitution
of the State of Oregon, or both, and which denial rendered the
conviction void.” ORS 138.530(1)(a). The state-based right to
adequate assistance of counsel derives from Article I, sec-
tion 11, of the Oregon Constitution, which provides, in part,
that “[i]n all criminal prosecutions, the accused shall have
the right * * * to be heard by himself and counsel.” The fed-
eral right to effective assistance of counsel derives from the
Sixth Amendment to the United States Constitution’s guar-
antee that “[i]n all criminal prosecutions, the accused shall
enjoy the right * * * to have the Assistance of Counsel for
his defence.” This court has said that, although those provi-
sions are “worded differently,” they “embody similar objec-
tives.” Krummacher v. Gierloff, 290 Or 867, 871, 627 P2d 458
(1981).
312	                                             Green v. Franke

	       In evaluating whether a criminal defense law-
yer has rendered inadequate assistance under the Oregon
Constitution, our analysis ordinarily proceeds in two steps:
   “ 
    ‘First, we must determine whether petitioner demon-
   strated by a preponderance of the evidence that [his or her
   counsel] failed to exercise reasonable professional skill and
   judgment. Second, if we conclude that petitioner met that
   burden, we further must determine whether he proved that
   counsel’s failure had a tendency to affect the result of his
   trial.’ ”
Montez v. Czerniak, 355 Or 1, 7, 322 P3d 487, adh’d to as
modified on recons, 355 Or 598, 330 P3d 595 (2014) (quot-
ing Lichau v. Baldwin, 333 Or 350, 359, 39 P3d 851 (2002)
(internal citations omitted)). Only general statements can
be made about what constitutes the exercise of professional
skill and judgment. Krummacher, 290 Or at 873. Generally
speaking, “counsel must * * * prepare himself on the law to
the extent appropriate to the nature and complexity of the
case.” Id. at 875. Counsel need not, however, “expend time
and energy uselessly or for negligible potential benefit under
the circumstances of the case.” Id. at 874.
	         This court’s review of a post-conviction court’s
determinations is not open-ended. We review such proceed-
ings for errors of law. Peiffer v. Hoyt, 339 Or 649, 660, 125
P3d 734 (2005). A post-conviction court’s findings of histor-
ical fact are binding on this court if there is evidence in the
record to support them. Lichau, 333 Or at 359. If the post-
conviction court failed to make findings of fact on all the
issues—and there is evidence from which such facts could be
decided more than one way—we will presume that the facts
were decided consistently with the post-conviction court’s
conclusions of law. Id.
                          ANALYSIS
	       As discussed, in this case, petitioner contends
that his trial counsel’s performance was inadequate either
because counsel did not make a conscious choice to forego
asking for a limiting jury instruction or because, if he made
that choice, no reasonable counsel would have done so. This
court recently addressed a similar problem in Pereida-Alba
v. Coursey, 356 Or 654, 342 P3d 70 (2015). Because the
Cite as 357 Or 301 (2015)	313

analysis in that case is central to our analysis here, we first
discuss that case in some detail.
	        The petitioner in Pereida-Alba, having been con-
victed of first-degree robbery, asserted in a post-conviction
action that his trial counsel “either did not decide or rea-
sonably could not have decided to forego giving the jury the
option of convicting him of the lesser-included offense of
third-degree robbery.” Id. at 656. In Pereida-Alba, neither
party presented testimonial evidence from the petitioner’s
trial counsel. The state did, however, assert before the post-
conviction court that counsel’s failure to request the pos-
ited instruction would have been a reasonable tactical deci-
sion. In that regard, the state argued that, “given the store
employee’s favorable testimony, [the] petitioner’s trial coun-
sel reasonably could have made a tactical choice to limit the
jury’s options to convicting petitioner of first-degree robbery
or acquitting him.” Id. at 660. The post-conviction court
ruled that no reasonable counsel would have failed to ask
for an instruction on the lesser-included offense and entered
judgment in the petitioner’s favor.
	       The Court of Appeals affirmed. It observed that the
mandatory minimum sentence for first-degree robbery is
90 months’ imprisonment, while the guidelines sentence for
third-degree robbery ranges from probation to 16 months.
Pereida-Alba, 252 Or App at 71. Explaining that the evi-
dence permitted the petitioner to argue that he had commit-
ted third-degree robbery but not first-degree robbery, the
court reasoned:
   “The upshot is that there was no evident downside to peti-
   tioner from requesting an instruction on third-degree rob-
   bery and a significant potential benefit to him from doing
   so.”
Id. The Court of Appeals concluded, based on its assessment
of the potential risks and benefits, that “the post-conviction
court reasonably could [and implicitly did] infer that the
defense attorney’s failure to request an instruction on third-
degree robbery was attributable to the attorney’s failure
to consider whether to make such a request.” Id. The court
also concluded that counsel’s failure to consider whether to
request an instruction on third-degree robbery amounted
314	                                           Green v. Franke

to inadequate assistance. Id. Finally, the Court of Appeals
concluded that counsel’s omission prejudiced the petitioner
because “the jury did not have a complete statement of the
law.” Id. at 72.
	       After an extensive examination of trial counsel’s
defense of the petitioner in the underlying criminal case,
this court concluded on review that counsel reasonably
could have determined that the absence of an instruction on
third-degree robbery would not have impermissibly skewed
the jury’s verdict towards a conviction for first-degree rob-
bery. Pereida-Alba, 356 Or at 668. This court further con-
cluded that counsel reasonably could have believed that,
when faced with the choice of convicting the petitioner of
the doubtful crime of first-degree robbery or acquitting him
altogether, the jury would choose the latter course. Id.
	         The remaining question was whether counsel had
made a conscious choice to forego asking for an instruc-
tion on third-degree robbery and, if she had failed to con-
sider that option, what the legal consequences of that fail-
ure were. This court explained that “the failure to consider
every possible tactical choice does not automatically estab-
lish inadequate assistance.” Id. at 670. In so concluding, this
court implicitly rejected as incomplete the Court of Appeals’
framing of the inadequate assistance inquiry in terms of
whether there “was no evident downside to petitioner from
requesting an instruction” and “a significant potential bene-
fit to him from doing so.” See id. at 661. That is, this court in
effect held that, even if such a cost-benefit inquiry suggests
that counsel’s failure to seek a limiting instruction may have
been deficient, the question remains whether the omission
constituted inadequate assistance, especially when viewed
in light of the strategy that the petitioner’s counsel did pur-
sue. See id. at 674.
	        This court in Pereida-Alba further concluded that
it could not assume that the post-conviction court implicitly
found that counsel failed to consider asking for an instruc-
tion on third-degree robbery. The court noted that the peti-
tioner had the burdens of production and persuasion on his
claim and that there was no direct evidence that his counsel
inadvertently had failed to seek a lesser-included offense
Cite as 357 Or 301 (2015)	315

instruction; the question then became “whether the circum-
stantial evidence in the record [was] sufficient to meet peti-
tioner’s burden of production.” Id. at 672. Because such cir-
cumstantial evidence did exist, this court remanded the case
to the post-conviction court with the following instructions:
   	 “If the post-conviction court finds on remand that peti-
   tioner has not met his burden of persuasion on that issue
   and that petitioner’s counsel made a tactical choice, then
   that choice was a reasonable one for the reasons explained
   above. Conversely, if the post-conviction [court] finds that
   petitioner has met his burden of persuasion and that his
   counsel failed to consider asking for an instruction on the
   lesser-included offense of third-degree robbery, then the
   question whether petitioner’s counsel provided constitution-
   ally adequate assistance becomes slightly more complex.
   As this court recently explained, the failure to consider an
   issue or undertake a particular investigation does not auto-
   matically constitute inadequate assistance. However, the
   absence of strategic thought or direction on the part of a
   defense team can constitute inadequate assistance.
   	“As Montez explains, whether the failure to consider an
   issue constitutes inadequate assistance will turn on, among
   other things, whether the strategy that defense counsel
   did employ was reasonable, the relationship between the
   evidence or theory that defense counsel failed to consider
   and the strategy that counsel did pursue, and the extent to
   which counsel should have been aware of the strategy that
   petitioner now identifies.”
Id. at 673-74 (internal quotations and citations omitted).
	        This court in Pereida-Alba ultimately held that,
if, on remand, the post-conviction court found that counsel
failed to consider asking for an instruction on third-degree
robbery, then the post-conviction court would have to decide
whether that failure constituted inadequate assistance
based on the reason for that failure, considered in light of
the strategy that the court found that counsel did pursue.
Id. at 674.
	        As further background, we briefly review certain
principles pertaining to the joinder of criminal charges
involving offenses of the same or similar character. ORS
132.560 provides, in pertinent part:
316	                                                        Green v. Franke

    	 “(1)  A charging instrument must charge but one
    offense, and in one form only, except that:
    	   “* * * * *
    	 “(b)  Two or more offenses may be charged in the same
    charging instrument in a separate count for each offense if
    the offenses charged are alleged to have been committed by
    the same person or persons and are:
    	   “(A)  Of the same or similar character.
    	   “* * * * *
    	 “(3)  If it appears, upon motion, that the state or defen-
    dant is substantially prejudiced by a joinder of offenses
    under subsection (1) or (2) of this section, the court may
    order an election or separate trials of counts or provide
    whatever other relief justice requires.”
In analyzing questions of joinder and severance of criminal
charges under ORS 132.560(3), a trial court must focus on
“any circumstance” that impairs a defendant’s right to a fair
trial. State v. Miller, 327 Or 622, 633, 969 P2d 1006 (1998).10
Of particular relevance is the “probable effectiveness of lim-
iting instructions given to the jury by the court.” State v.
Staley, 142 Or App 583, 589, 923 P2d 650 (1996), rev den,
324 Or 560 (1997). Where charges of the same or similar
character are jointly tried, this court has recognized that
“trial courts have the authority to give limiting instructions
to juries that require them to consider evidence only for a
particular purpose or in regard to a particular element.”
State v. Moore/Coen, 349 Or 371, 391, 245 P3d 101 (2010),
cert den, __ US __, 131 S Ct 2461, 179 L Ed 2d 1225 (2011).
In particular,
    “[w]hen a trial court declines to sever joined offenses, and
    evidence relating to one offense is not admissible to prove
    another joined offense, a trial court ordinarily will instruct
    the jury to consider the evidence on each offense separately

	10
       In State v. Barone, 329 Or 210, 986 P2d 5 (1999), cert den, 528 US 1086,
120 S Ct 813, 145 L Ed 2d 685 (2000), this court upheld the trial court’s decision
denying the defendant’s motion to sever three homicides for which the defendant
was indicted. However, the trial court in that case required that the prosecu-
tion “build a ‘fire wall’ between the three cases and to ‘present the cases totally
separately.’ ” Id. at 216. Prosecutors in Barone made three separate opening and
closing arguments; each case was presented separately.
Cite as 357 Or 301 (2015)	317

    to prevent the jury from using the evidence offered to prove
    one offense to decide another joined offense.”

Leistiko, 352 Or at 178 (“recognizing the risk that a jury
may use evidence admitted to prove one count in deciding
whether the state has proved a joined count”). In fact,
    “[w]hen evidence which is admissible as to one party or for
    one purpose but not admissible as to another party or for
    another purpose is admitted, the court, upon request, shall
    restrict the evidence to its proper scope and instruct the
    jury accordingly.”

OEC 105.
	        With that background, we return to this case. As
noted, the state has not asserted that evidence that defen-
dant committed a crime against a particular victim was
admissible to prove that petitioner committed a charged
offense alleged against a different victim.11 Nor does the
state dispute that competent defense counsel ordinarily
would seek an appropriate limiting instruction in a case
where multiple charges involving different victims and sep-
arate criminal episodes have been joined for trial. Rather,
the state asserts that, although neither party offered evi-
dence from petitioner’s trial counsel explaining why counsel
did not request a limiting instruction, counsel’s strategy in
the criminal trial was to acknowledge petitioner’s guilt as
to the charges involving consensual sexual contact, but to
defeat the charges involving forcible sexual contact, and a

	11
        The Court of Appeals similarly observed that the state had not contended
before that court “that the evidence of unlawful sexual conduct pertaining to
any particular victim was nonetheless admissible as to a different victim for a
noncharacter purpose ‘such as proof of motive, opportunity, intent, preparation,
plan, knowledge, identity, or absence of mistake or accident.’ ” Green, 261 Or App
at 60 (quoting OEC 404(3)).
	   We note that this court recently held, in State v. Williams, 357 Or 1, 346 P3d
455 (2015), that, irrespective of OEC 404(3), “the admission of ‘other acts’ evi-
dence to prove character and propensity under OEC 404(4) depends on whether
the risk of unfair prejudice outweighs the probative value of the evidence under
OEC 403.” Williams, 357 Or at 20. If, on a new trial in this case, the state were to
offer other crimes evidence with respect to one or more victims to prove a charge
involving a different victim, the trial court would be required to address any
objection that defendant might make under OEC 403. We have no occasion here
to predict what ruling the trial court might make if that set of circumstances
were to unfold.
318	                                           Green v. Franke

non-propensity instruction could have conflicted with that
strategy. The state explains:
   “[T]rial counsel believed that petitioner had no plausible
   defense to the charges that were based on consensual sex-
   ual contact with the victims. Thus, he focused his over-
   arching trial strategy on creating doubt about the more
   serious charges that depended on forcible sexual contact.
   He wanted the jury to believe that, although petitioner had
   sexual contact with several of those victims, it was—like
   the offenses to which he had admitted—consensual.”
(Emphasis in original.)
	        The state urges that, given that strategy to portray
all of the sexual encounters in which petitioner engaged as
consensual, a reasonable attorney might “have wanted the
jury to infer that the fact that petitioner had consensual sex
with some victims made it more likely that sex with other
victims was also consensual,” which would have conflicted
with a limiting instruction of the kind that petitioner claims
should have been requested. The state also points out that
counsel emphasized in argument that many of the victims
knew each other (suggesting that they had perhaps collab-
orated on their versions of what occurred) and counsel in
argument compared the accounts of some of the victims to
those of other victims. In the state’s view, counsel could not
have made those arguments if the limiting instruction had
been given.
	        Petitioner responds that, in the event that the
jury found that petitioner committed a sex offense against
a particular victim, petitioner needed to mitigate the risk
of being convicted of a charge involving a different victim
based on a perceived propensity to sexually abuse underage
girls. According to petitioner, that need was not necessarily
incompatible with the trial strategy that counsel pursued.
As petitioner sees it, his counsel’s defense strategy reduced
to trying to impeach the victim’s credibility, and impeaching
a victim’s testimony with evidence that she knew another
victim or that she described a different “pattern” of abuse
from other victims would not have been inconsistent with
admonishing the jury that—except for the limited purpose
of impeachment—it was required to consider the evidence
Cite as 357 Or 301 (2015)	319

concerning each victim separately and only as that evidence
related to a specific charge involving that victim. See OEC
105 (requiring limiting instruction upon request when “evi-
dence which is admissible as to one party or for one purpose
but not admissible as to another party or for another purpose
is admitted” (emphasis added)).
	        The difficulty with the arguments that the parties
make about the effect, if any, of counsel’s trial strategy on
petitioner’s instructional claim is that those arguments were
not made either before the post-conviction court or the Court
of Appeals. For that reason, the post-conviction court’s rul-
ing in this case did not include an express or implied find-
ing about whether counsel made a strategic choice to forego
requesting a limiting instruction. That circumstance invites
the question as to which party bore the burden of raising the
issue of whether counsel made a reasonable tactical choice.
To date, we have not expressly decided whether a post-
conviction petitioner’s procedural and evidentiary burdens
also include an obligation to identify, and then rebut, any
possible tactical reasons that counsel may have had for a lit-
igation action or omission.12 Nor have the parties addressed
that issue on appeal or review.
	        As a further complication on review, the Court of
Appeals’ framing of the inadequate assistance inquiry was
incomplete in asking whether there “was no evident down-
side to petitioner from requesting an instruction * * * and
a significant potential benefit to him from doing so.” See
Green, 261 Or App at 58 (quoting Pereida-Alba, 252 Or App
at 71). Consistent with this court’s holding in Pereida-Alba,
even where a cost-benefit inquiry suggests that counsel’s
failure to seek a limiting instruction was deficient, the ques-
tion remains whether the omission constituted inadequate
	12
        We note that, in Pereida-Alba, this court said:
    “When, as in this case, the state argues that the petitioner’s trial counsel made
    a reasonable tactical choice, that argument does not shift the burden of pro-
    duction and proof; rather, as petitioner acknowledges, the burden of produc-
    tion and proof remains with him.”
Pereida-Alba, 356 Or at 662 (emphasis added). Perida-Alba thus left the burden
of proof and persuasion with the petitioner when the state raises the possibility
that trial counsel made a choice for tactical reasons. But Perida-Alba did not
speak to what happens if the state does not raise that argument.
320	                                          Green v. Franke

assistance of counsel, particularly when viewed in light of
the strategy that counsel did pursue. Pereida-Alba, 356 Or
at 674. Neither the post-conviction court nor the Court of
Appeals had the benefit of this court’s decision in Pereida-
Alba in considering petitioner’s claim. Moreover, as was the
circumstance in Pereida-Alba, the post-conviction court in
this case could have found from the evidence before it either
that counsel did or did not consider the need for a limiting
instruction.
	         To summarize: (1) the parties did not expressly lit-
igate before the post-conviction court the issue of the effect,
if any, of counsel’s trial strategy on the adequacy of coun-
sel’s performance in failing to request a limiting instruc-
tion; (2) this court has not expressly decided whether a post-
conviction petitioner’s procedural and evidentiary burdens
include anticipating the argument that counsel made a tac-
tical decision that was inconsistent with the act or omission
complained of, and the parties have not addressed that issue
on appeal or review; (3) neither the post-conviction court nor
the Court of Appeals had the benefit of this court’s decision
in Pereida-Alba in considering the adequacy of counsel’s per-
formance in this case; and (4) the record before us would per-
mit the post-conviction court to draw opposing inferences as
to whether trial counsel did or did not consider requesting
a limiting instruction and how such an instruction would
have fit with counsel’s overall trial strategy.
	        In light of those circumstances, we conclude that
the proper course of action is to reverse the decision of the
Court of Appeals, reverse the post-conviction court’s judg-
ment denying post-conviction relief with respect to peti-
tioner’s instructional claim, and remand that claim to the
post-conviction court for further consideration in light of
this court’s decision in Pereida-Alba. In reaching that con-
clusion, we recognize that the post-conviction court did not
actually decide whether counsel’s failure to request a limit-
ing instruction constituted inadequate assistance; instead,
the court concluded that petitioner failed to demonstrate
prejudice. As noted, the Court of Appeals rejected the post-
conviction court’s conclusion with respect to prejudice. On
review, the state challenges the Court of Appeals’ analysis
of prejudice, raising several reasons why, in the state’s view,
Cite as 357 Or 301 (2015)	321

the Court of Appeals was wrong and the post-conviction court
was right. If we were to agree with the state’s arguments
in that regard, it would obviate the need for a remand. We
therefore briefly address one argument that the state makes
and that is appropriate for us to resolve at this juncture.
	        The state argues that the Court of Appeals applied
the wrong legal standard for prejudice. The state asserts
that, “[r]ather than evaluating what likelihood a limiting
instruction would have had on the jury’s verdict, the Court
of Appeals evaluated what likelihood it could have had.”
(Emphases in original.) The post-conviction court used the
probability-based formulation of the prejudice standard for
which the state advocates when it concluded that, if counsel
had requested a limiting instruction, the result “would” not
have been different. We conclude, however, that the post-
conviction court was mistaken in doing so.
	        As the Court of Appeals explained, to prove preju-
dice, petitioner had to show that his trial counsel’s deficient
exercise of skill and judgment had a “tendency to affect the
result of the prosecution.” Green, 261 Or App at 59. This
court first used the phrase “tendency to affect the result of
the prosecution” more than 30 years ago in Krummacher,
wherein the court concluded that “only those acts or omis-
sions by counsel which have a tendency to affect the result
of the prosecution can be regarded as of constitutional mag-
nitude.” 290 Or at 883. Although the court in Krummacher
did not elucidate the meaning of that term, the court applied
it by concluding that the petitioner’s trial counsel’s failure
to object to a leading question did not have a tendency to
affect the outcome of the prosecution because the omission
was “inconsequential.” Id.
	        In Stevens v. State of Oregon, 322 Or 101, 902 P2d
1137 (1995), the petitioner established that his trial counsel
in a rape prosecution had failed to adequately investigate
and discover witnesses who would call into question the
complaining witness’s credibility. The Court of Appeals had
affirmed the post-conviction court’s denial of post-conviction
relief on the ground that the petitioner had not proved “sub-
stantial[ ] prejudice[ ].” Stevens v. State of Oregon, 129 Or
App 533, 537, 879 P2d 893 (1994). The Court of Appeals had
322	                                             Green v. Franke

described substantial prejudice as omissions by trial coun-
sel that “would have affected the outcome of the case” and
held that the omissions likely had not made any difference
in the outcome of the prosecution. Id. On review, as it had
in Krummacher, this court framed the prejudice inquiry in
terms of whether the inadequate performance of the peti-
tioner’s counsel had a tendency to affect the outcome of the
trial. Stevens, 322 Or at 110. This court concluded that coun-
sel’s errors “denied [the] petitioner highly valuable impeach-
ing evidence from disinterested witnesses that would have
called into question pivotal testimony of the complaining
witness.” Id. The omitted evidence had a tendency to affect
the outcome, this court concluded, because there were “no
other witnesses to the alleged rape and no physical evi-
dence of abuse or trauma,” and the prosecution “necessarily
turned on the credibility of the complaining witness and of
[the] petitioner.” Id. at 108-09.
	In Lichau, this court concluded that the petitioner
was prejudiced by his trial counsel’s unreasonable failure to
investigate a possible alibi defense to charges of rape, sod-
omy, and sexual abuse of the petitioner’s underage niece.
Lichau, 333 Or at 363-64. The court noted that, if counsel
had presented an alibi defense, the jury would have heard
additional evidence that the petitioner was not in the state
when the sexual abuse allegedly had occurred, and the jury
would have been instructed that the prosecution had the
burden of proving, beyond a reasonable doubt, that the peti-
tioner was present in the state during the narrow period of
time at issue. Id. at 364-65. Because the case turned pri-
marily on the credibility of the petitioner and the victim, the
court concluded that “the presentation of [the alibi] evidence
could have tended to affect the jury’s consideration of the
niece’s and petitioner’s version of events.” Id. at 365 (empha-
sis added).
	         As the described cases indicate, where the effect of
inadequate assistance of counsel on the outcome of a jury
trial is at issue, it is inappropriate to use a “probability” stan-
dard for assessing prejudice. Instead, because many differ-
ent factors can affect the outcome of a jury trial, in that set-
ting, the tendency to affect the outcome standard demands
more than mere possibility, but less than probability. As the
Cite as 357 Or 301 (2015)	323

court stated in Lichau, the issue is whether trial counsel’s
acts or omissions “could have tended to affect” the outcome of
the case. Id. (emphasis added).13
	       Because the post-conviction court appears to have
applied the wrong legal standard for prejudice, it is inap-
propriate to affirm the post-conviction court’s judgment on
prejudice grounds on the record before us.
	         The decision of the Court of Appeals is reversed.
The judgment of the circuit court denying post-conviction
relief is reversed and remanded with respect to petitioner’s
instructional claim, and is otherwise affirmed.




	13
        In contrast, where the prejudice inquiry focuses on a different type of out-
come, for example, whether in the absence of inadequate assistance of counsel
the petitioner would have entered a guilty plea, this court has described the ten-
dency to affect the outcome test in terms of actual probability. Thus, in Moen v.
Peterson, 312 Or 503, 513, 824 P2d 404 (1991), the court held that, “to prevail in
this case, [the] petitioner must show by a preponderance of the evidence that, had
counsel informed him of the possibility of a minimum sentence, or had he other-
wise been aware of it, he would not have pleaded no contest.” (Footnote omitted;
emphasis added.) See also Trujillo v. Maass, 312 Or 431, 437, 822 P2d 703 (1991)
(framing prejudice inquiry in terms of whether the petitioner “would have with-
drawn his plea” if counsel’s advice had been adequate).
