State v. Bernhardt

• Decision Date: 27 April 2016
• Docket Number: A152817.,211211071
• Citation: 277 Or.App. 868,376 P.3d 316
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Jeremy Wayne BERNHARDT, Defendant–Appellant.
• Court: Oregon Court of Appeals

277 Or.App. 868

376 P.3d 316

STATE of Oregon, Plaintiff–Respondent,

v.Jeremy Wayne BERNHARDT, Defendant–Appellant.

211211071

A152817.

Court of Appeals of Oregon.

Submitted Feb. 10, 2015.

Decided April 27, 2016.

Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael J. Slauson, Assistant Attorney General, filed the brief for respondent.

Before SERCOMBE, Presiding Judge, and HADLOCK, Chief Judge, and TOOKEY, Judge.

TOOKEY

, J.

Defendant appeals a judgment of conviction, following a jury trial, for sexual abuse in the second degree in violation of ORS 163.425

.¹ The jury found defendant guilty for knowingly subjecting the minor victim to deviate sexual intercourse without her consent. In his first assignment of error, defendant argues that the trial court erred when it denied his motion for judgment of acquittal because the state failed to prove that the victim did not consent to deviate sexual intercourse. In his second assignment of error, defendant argues that the trial court erred when it denied his requests to argue to the jury that the term “subjects,” as used in ORS 163.425, is an element of the crime and requires the state to prove beyond a reasonable doubt that the defendant exerted some control over the victim. We conclude that when an adult, acting with the requisite culpable mental state, has deviate sexual intercourse with a minor who is legally incapable of giving consent, ORS 163.425(1)(a) does not require the state to prove that the adult exerted control over the minor victim or that the minor victim did not actually consent. Accordingly, we affirm.

Defendant's assignments of error present the same legal question—whether the trial court's rulings were based on a proper interpretation of ORS 163.425(1)(a)

.²

“A trial court's interpretation of a statute is reviewed for legal error.” State v. Thompson, 328 Or. 248, 256, 971 P.2d 879

, cert. den., 527 U.S. 1042, 119 S.Ct. 2407, 144 L.Ed.2d 805 (1999).

We begin with defendant's first assignment of error concerning the trial court's denial of his motion for judgment of acquittal. After we settle the legal issue of what the element “does not consent” means, we view “the evidence in the light most favorable to the state” to determine whether a “rational trier of fact could have found that the essential elements of the crime had been proved beyond a reasonable doubt.” State v. Paragon, 195 Or.App. 265, 267, 97 P.3d 691 (2004)

. In accordance with that standard, “we state the facts in the light most favorable to the state.” State v. Massei, 247 Or.App. 30, 32, 268 P.3d 774 (2011).

Defendant, who was 29 years old, picked up B, a 16–year–old girl, in his truck and took her to the farthest parking area at the north jetty in Florence, Oregon. After they took a walk on the beach, defendant and B got back into his truck. B took defendant's pants off, performed oral sex on him for “less than 10 minutes,” and defendant put his hands down her pants. Defendant had an erection and did not attempt to push B away or tell her to stop when she took his pants off or when she began performing oral sex on him. Defendant was charged with, among other things, one count of sexual abuse in the second degree. At trial, B testified that she had initiated the oral sex and the state introduced no evidence that the deviate sexual intercourse was against B's will.

Defendant moved for judgment of acquittal when the state rested its case and renewed the motion prior to closing arguments, contending that the state had failed to prove the victim did not consent. The trial court denied defendant's motion both times, reasoning that a rational trier of fact could find that the victim did not consent because of her legal incapacity to give actual consent as a minor. As noted above, defendant was subsequently convicted of one count of second-degree sexual abuse. On appeal, defendant reprises the argument he made to the trial court—that the state failed to prove that the minor victim did not consent to deviate sexual intercourse.

Defendant's argument regarding B's consent is foreclosed by State v. Ofodrinwa, 353 Or. 507, 300 P.3d 154 (2013)

. In Ofodrinwa, the Supreme Court construed ORS 163.425 and concluded that the legislature intended the phrase “does not consent” to include sexual conduct with individuals legally incapable of consent, regardless of whether the conduct actually is against their will. 353 Or. at 519, 300 P.3d 154

(“A person who is incapable of giving consent stands in the same position as one who elects not to give it; in each case, the person ‘does not consent.’ ”); see also

State v. Stamper, 197 Or.App. 413, 427, 106 P.3d 172, rev. den., 339 Or. 230, 119 P.3d 790 (2005) (“[O]ur best judgment is that the legislature intended the phrase ‘the victim does not consent’ [in ORS 163.425 ] to apply either to actual lack of consent or incapacity to consent because the victim was under the age of 18.”). In this case, the state presented evidence that B was 16 years old at the time the deviate sexual intercourse occurred. See ORS 163.315(1)(a) (“A person is considered incapable of consenting to a sexual act if the person is * * * [u]nder 18 years of age[.]”). We conclude that the trial court did not err when it denied defendant's motion for judgment of acquittal.

We turn to defendant's second assignment of error. As previously noted, defendant argues that the trial court erred when it denied his requests to argue to the jury that the term “subjects,” as used in ORS 163.425

, is an element of the crime and requires the state to prove beyond a reasonable doubt that defendant exerted some control over the victim. At trial, defendant argued that “ ‘subjects' means to cause to undergo or to submit to. Subrogate. To make oneself amenable to the discipline or control of a superior.” Defendant contended that he should be able to argue that the state did not prove that defendant knowingly subjected B to deviate sexual intercourse because defendant did not initiate the deviate sexual intercourse or cause it to happen. The state responded that “the word ‘subject’ has many different meanings, but the three [the state] want[ed] to highlight to the Court [from the dictionary] here would be * * * [t]o make liable or vulnerable or expose.” The state continued, stating that, if “[defendant] presents his erection for her to put her mouth on, that he has facilitated or exposed her [to] * * * that type of activity.” The trial court declined defendant's request to argue his interpretation of ORS 163.425

to the jury, stating:

“[W]hat I am stating for the record is that * * * my read of ‘knowingly subjected’ means simply that * * * he was able to form the intent to participate, not that he was the aggressor or that he initiated it or that he compelled it.

“ * * * * *

“What you cannot do is make any argument to the jury that if she started it, then the State has not proven the case. * * * [Y]ou both made arguments about what ‘knowingly subjected’ means. And I rejected [defendant's] interpretation and I accepted the state's.”

On appeal, defendant contends that the legislature intended the term “subjects” in ORS 163.425(1)(a)

to require the state to prove that defendant exerted some control over the victim. Defendant advances two arguments in support of his interpretation. First, he contends that the plain text supports his interpretation, because the word “subjects” connotes control or dominion. Second, he asserts that the context and legislative history of the statute indicate that the legislature distinguished between two types of sex crimes by using the word “subjects” for crimes requiring that a defendant exert dominion or control over a victim, and the term “engages in” for conduct that was not necessarily against the victim's will, but which society nonetheless criminalizes. The state responds that the term “subjects” does not require the state to prove that defendant exerted control over the victim.

The parties' arguments and the trial court's ruling present a question of statutory interpretation, which we review for legal error. Thompson, 328 Or. at 256, 971 P.2d 879

(“A trial court's interpretation of a statute is reviewed for legal error.”). In interpreting a statute, we seek to discern the intent of the legislature. “We ascertain the legislature's intentions by examining the text of the statute in its context, along with any relevant legislative history, and, if necessary, canons of construction.” State v. Cloutier, 351 Or. 68, 75, 261 P.3d 1234 (2011) (citing State v. Gaines, 346 Or. 160, 171–73, 206 P.3d 1042 (2009) ).

We start with the statutory text because it is “the best evidence of the legislature's intent.” PGE v. Bureau of Labor and Industries, 317 Or. 606, 610, 859 P.2d 1143 (1993)

. Defendant contends that the plain text supports his interpretation. Although several terms used in ORS 163.425(1)(a) are defined in ORS 163.305

, the word “subjects” is not among them. It is, however, a word of “common usage,” and so we look first to its common understanding. PGE, 317 Or. at 611, 859 P.2d 1143 (“[W]ords of common usage typically should be given their plain, natural, and ordinary meaning”).

Webster's Third New International Dictionary contains the following relevant definitions for “subject” when used as a verb:

“1 a : to bring under control or dominion : SUBJUGATE b : to reduce to subservience or submission: make (as oneself) amenable to the discipline and control of a superior * * * 4 : to cause to undergo or submit to : make submit to a particular action or effect : EXPOSE [.]”

Webster's Third New Int'l Dictionary 2275 (unabridged ed. 2002).

Defendant emphasizes the first-listed definition. The first definition appears to support defendant's contention that “subjects” means to assert control over another. That definition also refers...