No. 148 March 29, 2023 31

IN THE COURT OF APPEALS OF THE

STATE OF OREGON

REGINALD DRESHAWN MANNING,

Petitioner-Appellant,

v.

Brandon KELLY, 

Superintendent, 

Two Rivers Correctional Institution,

Defendant-Respondent.

Marion County Circuit Court

18CV38259; A174690

Patricia A. Sullivan, Senior Judge.

Submitted April 1, 2022.

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.

Aliza Kaplan, Michaela C. Gore, Laney B. Ellisor, Colin 

Bradshaw, Certified Law Student, and Bijal Patel, Certified 

Law Student, filed the brief amicus curiae for Criminal 

Justice Reform Clinic at Lewis & Clark Law School.

Anna Sortun and Tonkon Torp LLP filed the brief amicus 

curiae for Latino Network, Don’t Shoot Portland, NAACP 

Corvallis-Albany Branch #1118, NAACP Eugene-Springfield 

Branch #1119, NAACP Salem-Keizer Branch #1166, NAACP 

Portland Chapter 1120B, Black Millennial Movement, Unite 

Oregon, Immigrant and Refugee Community Organization, 

and Urban League of Portland.

Rosalind M. Lee filed the brief amicus curiae for Oregon 

Criminal Defense Lawyers Association.

Andy Simrin and Andy Simrin PC filed the brief amicus 

curiae for Russell Shelley.
32 Manning v. Kelly

Before Shorr, Presiding Judge, and Mooney, Judge, and 

Pagán, Judge.

MOONEY, J.

Reversed and remanded as to petitioner’s sixth postconviction claim; otherwise affirmed.
Cite as 325 Or App 31 (2023) 33

MOONEY, J.

Petitioner appeals from a judgment denying his 

petition for post-conviction relief, raising five assignments 

of error. In the underlying criminal case, petitioner was convicted after a jury trial of three counts of compelling prostitution (Counts 1, 3, and 5), ORS 167.017, after nonunanimous verdicts of the jury, and three counts of promoting 

prostitution (Counts 2, 4, and 6), ORS 167.012, after unanimous verdicts of the jury. Petitioner filed a petition for postconviction relief and, in his second amended petition, alleged 

nine claims for relief. The post-conviction court denied petitioner’s claims.

On appeal, petitioner raises five assignments of 

error. The first three of those assignments concern petitioner’s claims for post-conviction relief in which he alleged 

that his criminal trial counsel provided him with ineffective assistance with respect to jury unanimity issues (fourth 

and fifth post-conviction claims) and a standalone claim 

that his convictions were obtained in violation of the Sixth 

Amendment jury unanimity rule announced in Ramos v. 

Louisiana, 590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 

(2020) (sixth post-conviction claim). The superintendent concedes that the post-conviction court erred in its conclusion 

that Ramos does not apply retroactively and that we should 

reverse and remand this matter for further proceedings 

concerning Counts 1, 3, and 5. Relying on Jones v. Brown, 

370 Or 649, 652 n 2, 523 P3d 82 (2022), the superintendent 

nevertheless asks us to affirm the post-conviction court’s 

denial of relief on petitioner’s third and ninth claims for 

post-conviction relief (fourth and fifth assignments of error 

on appeal) because “resolution of [those] claims for relief 

could implicate all petitioner’s convictions, including those 

that arose from unanimous verdicts[.]”

The Oregon Supreme Court recently concluded that 

a conviction obtained in violation of the jury unanimity rule 

constitutes a “substantial denial” of a constitutional right 

and “renders the conviction void”—even when the conviction 

became final before the unanimity rule was announced—

and requires post-conviction relief under ORS 138.530(1)(a), 

unless a procedural defense in the Post-Conviction Hearings 
34 Manning v. Kelly

Act (PCHA) has been successfully raised and sustained. 

Watkins v. Ackley, 370 Or 604, 633, 523 P3d 86 (2022). 

Because petitioner was denied his constitutional right to a 

conviction that was based on a unanimous verdict on Counts 

1, 3, and 5, as the superintendent concedes, and because 

the superintendent has not raised any of the procedural 

defenses set out in the PCHA, we agree that it was error for 

the post-conviction court to deny petitioner relief based on 

his sixth claim for relief. See Marshall v. Myers, 324 Or App 

126, 524 P3d 992 (2023) (holding same). Resolution of petitioner’s standalone claim renders all other challenges moot 

as to Counts 1, 3, and 5. See Huggett v. Kelly, 370 Or 645, 

648 n 3, 523 P3d 84 (2022) (relying on Watkins to reverse the 

denial of post-conviction relief for nonunanimous jury verdicts on multiple counts, and concluding that it was, therefore, not necessary to address petitioner’s other claims on 

those counts because the claims were moot).

Defendant was convicted by unanimous verdict on 

three counts, Counts 2, 4, and 6, so we turn to petitioner’s 

fourth and fifth assignments of error, both of which are 

unrelated to the jury unanimity rule and neither of which 

have been rendered moot by our resolution of the standalone 

claim. See Jones, 370 Or at 652 n 2 (relying on Watkins to 

reverse the denial of post-conviction relief with respect to 

those convictions that had been reached by nonunanimous 

jury verdicts, while rejecting various other assignments 

with respect to those convictions reached by unanimous 

jury verdicts).

We review the denial of post-conviction relief for 

legal error, and we are bound by the post-conviction court’s 

factual findings when they are supported by evidence in the 

record. Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015).

In his fourth assignment, petitioner asserts that 

the post-conviction court erred in denying his third postconviction claim that trial counsel was ineffective when 

counsel failed to object to improper vouching testimony. 

“Vouching” is the expression of one’s personal opinion about 

the credibility of a witness. State v. Sperou, 365 Or 121, 

128, 442 P3d 581 (2019). Witnesses are not permitted to 

give vouching testimony. Id. That prohibition is designed to 
Cite as 325 Or App 31 (2023) 35

serve “the policy goals of ensuring that the jury remains 

the sole arbiter of witness credibility and that the jury’s role 

in assessing witness credibility is not usurped by another 

witness’s opinion testimony.” State v. Chandler, 360 Or 323, 

330, 380 P3d 932 (2016). Whether testimony constitutes 

improper vouching is a legal question, State v. Smith, 309 Or 

App 268, 282, 482 P3d 174 (2021), and each statement must 

be considered in the context in which it was made, Sperou, 

365 Or at 128.

At issue is Detective Opitz’s testimony that, when 

he first contacted the victim, she “wasn’t very cooperative,” 

she was “very closed,” and she was “very guarded.” He also 

testified that, as the investigation progressed, the victim 

became more “cooperative” and “open” as she answered 

all his questions. Opitz further testified that in his experience, sex-trafficking victims tend to be uncooperative at 

first. They tend “to have deception or you’re going to have—

usually you’re going to have victims that aren’t going to tell 

the truth.” As the investigation proceeds, however, “the victim will come full circle,” and begin to cooperate. Defendant 

argues that that testimony amounts to vouching. The postconviction court concluded that the detective’s testimony 

was not vouching and, therefore, that trial counsel had not 

been ineffective in not objecting to it.

The post-conviction court did not err. Opitz did not 

offer his opinion that the victim was or was not telling the 

truth. At most, he offered testimony about the dynamics of 

sex-trafficking investigations that might have been helpful to the jury in reaching its own determination about the 

victim’s credibility, but he did not testify either directly 

or indirectly that the victim was or was not credible. See 

State v. Middleton, 294 Or 427, 436-37, 657 P2d 1215 (1983) 

(court held that, although no witness may give an opinion on 

whether he believes a witness is telling the truth, an expert 

may testify generally about the dynamics of recantation and 

he may give his opinion as to whether the victim’s conduct 

was consistent with that dynamic); State v. Remme, 173 Or 

App 546, 558, 23 P3d 374 (2001) (“[I]t is one thing to educate 

the jury about an unusual phenomenon bearing on credibility, but it [is] quite another to ‘connect the dots’ explicitly 
36 Manning v. Kelly

** *. *** At least the last ‘dot’ must be left ‘unconnected.’”). 

Opitz did not vouch for the victim’s credibility. There was 

no vouching testimony to which petitioner’s counsel should 

have objected. Petitioner has, thus, not demonstrated that 

his lawyer failed to exercise objectively reasonable professional skill and judgment by not raising a vouching objection. Davis v. Cain, 304 Or App 356, 363, 467 P3d 816 (2020); 

see also Mandell v. Cain, 315 Or App 471, 473, 500 P3d 762 

(2021) (concluding that trial counsel’s lack of vouching objection was reasonable given that testimony was not vouching 

and therefore the petitioner was not prejudiced by the omission of any such objection). The post-conviction court did not 

err in denying relief as to petitioner’s third post-conviction 

claim.

Petitioner’s fifth assignment of error is based on a 

cumulative error theory. Oregon courts have yet to recognize such a theory and we accordingly reject that assignment. Monica v. Myers, 319 Or App 376, 386-87, 510 P3d 238 

(2022).

Reversed and remanded as to petitioner’s sixth 

post-conviction claim; otherwise affirmed.