State v. Belen, 12C47258

• Decision Date: 16 March 2016
• Docket Number: A154000.,12C47258
• Citation: 277 Or.App. 47,369 P.3d 438
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Mark Anthony BELEN, Defendant–Appellant.
• Court: Oregon Court of Appeals

277 Or.App. 47
369 P.3d 438

STATE of Oregon, Plaintiff–Respondent,
v.
Mark Anthony BELEN, Defendant–Appellant.

12C47258
A154000.

Court of Appeals of Oregon.

Submitted March 16, 2015.
Decided March 16, 2016.

369 P.3d 439

Peter Gartlan, Chief Defender, and David O. Ferry, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Erin K. Galli, Assistant Attorney General, filed the brief for respondent.

Before DUNCAN, Presiding Judge, and LAGESEN, Judge, and FLYNN, Judge.

DUNCAN, P.J.

277 Or.App. 48

Defendant appeals the trial court's judgment, raising two assignments of error. In his first assignment of error, defendant asserts that the trial court committed plain error by failing to instruct the jury that, in order to convict him of first-degree sodomy, as alleged in Count 1 of the indictment, it had to find that he knowingly subjected the victim to forcible compulsion. In his second assignment of error, defendant asserts that the trial court committed plain error by ordering him to pay $8,000 in court-appointed attorney fees. As explained below, based on State v. Nelson, 241 Or.App. 681, 251 P.3d 240 (2011), rev. dismissed, 354 Or. 62, 308 P.3d 206 (2012), and State v. Gray, 261 Or.App. 121, 322 P.3d 1094 (2014), we conclude that the trial court plainly erred by failing to instruct the jury that it had to find that defendant knowingly subjected the victim to forcible compulsion, but, as in State v. Ross, 271 Or.App. 1, 349 P.3d 620, rev. den., 357 Or. 743, 361 P.3d 608 (2015), we conclude that the error was harmless. In addition, we conclude that, under State v. Coverstone, 260 Or.App. 714, 320 P.3d 670 (2014), and State v. Mejia–Espinoza, 267 Or.App. 682, 341 P.3d 180 (2014), rev. den., 357 Or. 164, 351 P.3d 52 (2015), the trial court plainly erred by ordering defendant to pay $8,000 in attorney fees and it is appropriate for us to exercise our discretion to correct the error. Accordingly, we reverse the portion of the trial court's judgment requiring defendant to pay the court-appointed attorney fees, and we otherwise affirm.

369 P.3d 440

The state indicted defendant for multiple crimes.¹ Count 1 of the indictment, which is the only count at issue on appeal, charged defendant with committing first-degree sodomy against the victim in violation of ORS 163.405, which is set out below. 277 Or.App. at 48, 369 P.3d at 439. Specifically, the indictment alleged that defendant "unlawfully and knowingly, by

277 Or.App. 49

forcible compulsion, cause[d] [the victim] to engage in deviate sexual intercourse."

Defendant and the victim were married at the time of the charged crimes. Count 1 was based on a particular occasion, when, according to the victim's testimony at defendant's jury trial, defendant "wanted to have sex and [the victim] didn't want to."² The victim told defendant "no, no, I don't want to right now, no." In response, defendant pushed the victim down face first onto their bed, stated "don't ever tell me no," and "forced himself anally." The victim also testified that she and defendant had never engaged in any type of sexual "role playing" involving such conduct; that is, she testified that she never said "no," when actually consenting to anal sex.

Defendant denied the victim's allegations. He testified that he never had "unwanted" sex with her, "never forced [himself] on her," and never "took advantage of her." When asked about the victim's testimony, he said that the incidents of forced sex that she described "never happened."

At the conclusion of defendant's trial, the trial court instructed the jury regarding first-degree sodomy as follows:

"Oregon law provides that a person commits the crime of Sodomy in the First Degree if the person knowingly engages in deviate sexual intercourse with another person and if the victim is subjected to forcible compulsion by the defendant. In this case to establish the crime of Sodomy in the First Degree, the State must prove beyond a reasonable doubt the following four elements: The act occurred in Marion County, Oregon; the act occurred between January 1, 2010 and August 1, 2012; [defendant] knowingly had deviate sexual intercourse with [the victim]; and, [the victim] was subjected to forcible compulsion by the defendant."

Defendant did not take exception to that instruction.

277 Or.App. 50

The jury found defendant guilty of Count 1, among other crimes.³ The trial court entered a judgment sentencing defendant to a total of 202 months in prison and six months in jail, and ordering him to pay $1,000 in fines and $8,000 in court-appointed attorney fees.⁴ This appeal followed.

369 P.3d 441

As mentioned, in his first assignment of error, defendant asserts that the trial court committed plain error by failing to properly instruct the jury regarding the elements of first-degree sodomy as alleged in Count 1 of the indictment. First-degree sodomy is defined by ORS 163.405, which provides, in part:

"(1) A person who engages in deviate sexual intercourse with another person or causes another to engage in deviate sexual intercourse commits the crime of sodomy in the first degree if:

"(a) The victim is subjected to forcible compulsion by the actor[.]"

Relying on Nelson, 241 Or.App. 681, 251 P.3d 240, defendant argues that the "subjected to forcible compulsion" element of first-degree sodomy is an element that requires a culpable mental state. ORS 161.095(2) ("Except as provided in ORS 161.105, a person is not guilty of an offense unless the person acts with a culpable mental state with respect to each material element of the offense that necessarily requires a culpable mental state."); State v. Simonov, 358 Or. 531, 537, 368 P.3d 11 (2016) (an element is "material" for the purposes

277 Or.App. 51

of ORS 161.095 unless it relates " ‘solely to the statute of limitations, jurisdiction, venue’ or similar matters" (quoting State v. Blanton, 284 Or. 591, 595, 588 P.2d 28 (1978) )).

In Nelson, we held that the "subjected to forcible compulsion" element in the first-degree rape and first-degree sexual abuse statutes, ORS 163.375 and ORS 163.427, "necessarily requires a culpable mental state." 241 Or.App. at 688, 251 P.3d 240 (internal quotation marks omitted). Accordingly, we held that the trial court in that case had erred by failing to instruct the jury that it had to find that the defendant, who had been charged with knowingly committing first-degree rape and first-degree sexual abuse, had knowingly subjected the victim to forcible compulsion. Id. at 689, 251 P.3d 240.⁵

Since Nelson, we have held that a trial court's failure to instruct a jury that it must find a culpable mental state with respect to a "subjected to forcible compulsion" element constitutes plain error. Ross, 271 Or.App. at 10, 349 P.3d 620 ; Gray, 261 Or.App. at 130, 322 P.3d 1094. In Gray, which was decided after defendant's trial in this case, we explained that

"the trial court is required to ‘state to the jury all matters of law necessary for its information in giving its verdict.’ ORCP 59 B; ORS 136.330(1) (providing that ORCP 59 B applies to criminal actions). Accordingly, the trial court must instruct the jury on all the elements of the charged crimes. [State v. ] Lotches, 331 Or. [455,] 472 [, 17 P.3d 1045 (2000), cert. den., 534 U.S. 833, 122 S.Ct. 82, 151 L.Ed.2d 45 (2001) ] (‘[A] jury must be instructed concerning the necessity of agreement on all material elements of a charge in order to convict.’). Consistently with that principle, because the ‘subjected to forcible compulsion’ element of first-degree rape and first-degree sexual abuse requires that the jury find that the defendant acted with a culpable mental state, Nelson, 241 Or.App. at 688, 251 P.3d 240, the trial court is required to instruct the jury that, to convict, it must determine that the state has proved beyond a reasonable doubt that defendant acted

277 Or.App. 52

with a culpable mental state in subjecting the victim to forcible compulsion. That legal point is ‘obvious' and ‘not reasonably in dispute.’ "

261 Or.App. at 130, 322 P.3d 1094.

Relying on Nelson and Gray, defendant in this case contends that the trial court committed plain error by failing to instruct the jury that it had to find that he knowingly subjected the victim to forcible compulsion, noting that the instruction the trial court gave to the jury in this case is identical to the instruction at issue in Gray. See Gray, 261 Or.App. at 124, 322 P.3d 1094. In response,

369 P.3d 442

the state does not dispute either that it was required to prove a culpable mental state with respect to the "subjected to forcible compulsion" element or that the jury instruction that the trial court gave was incomplete under Nelson and Gray, instead, the...