State v. Bunyea, C

• Decision Date: 19 February 1980
• Docket Number: No. C,C
• Citation: 606 P.2d 685,44 Or.App. 611
• Parties: STATE of Oregon, Respondent, v. Robert Michael BUNYEA, Appellant. 78-09-14411; CA 13891.
• Court: Oregon Court of Appeals

Page 685

606 P.2d 685

44 Or.App. 611

STATE of Oregon, Respondent, v. Robert Michael BUNYEA, Appellant.

No. C 78-09-14411; CA 13891.

Court of Appeals of Oregon.

Argued and Submitted Dec. 12, 1979.

Decided Feb. 19, 1980.

Gary L. Hooper, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief were Gary D. Babcock, Public Defender, and Steve Dixon, Certified Law Student, Salem.

W. Benny Won, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James A. Redden, Atty. Gen., and Walter L. Barrie, Sol. Gen., Salem.

Before JOSEPH, P. J., and LEE and RICHARDSON, JJ.

JOSEPH, Presiding Judge.

Convicted of rape in the first degree ¹ after trial by jury, defendant on appeal assigns as error: (1) failure to give his requested jury instructions on mistake of fact ² and the statutory definition of "knowingly," ³ and (2) the court's instruction to the jury on aiding and abetting. ⁴

Defendant and a friend named Phillips escorted the victim by car to defendant's apartment. Upon arrival, the victim said she wanted to walk home, but defendant restrained her and told her he would not let her walk. She then entered the apartment to use the toilet. When she emerged from the bathroom, defendant, who was standing near the door, pulled her down on a bed and told her in coarse terms ⁵ that she was going to engage in sexual activity with him. The victim yelled for Phillips, who entered the room and told defendant to leave, which he did. Phillips then told the victim that defendant would kill her if she did not do what defendant wanted her to do and that he, Phillips, would let that happen unless she made love with him (Phillips). The account given by Phillips, who testified at the trial for the state, was that the victim indicated she was willing to have sexual relations with him but not with defendant, and that he told her he would leave her to argue with defendant.

At this point, according to the victim, she began crying and screaming. Defendant came in, slapped her and said that if she screamed again he would "put her out" for good. She told them she had the right to decide who she went to bed with, but they told her they did not care about her rights. Phillips told defendant to "stay mellow" and again asked him to leave, which he did closing the door to the bedroom. Phillips repeated his earlier statement to her about defendant, and then the victim and Phillips had sexual relations. As that was concluding, defendant, naked, appeared by the bed and proceeded to have sexual intercourse with the victim. There was evidence from the victim, defendant and Phillips that she objected to this in various ways, both physical and verbal, but did not try to escape. She testified she was frightened of defendant. His defense at trial was that the victim never specifically told him to stop and that he mistakenly thought she was consenting. Defendant was indicted ⁶ and tried on a charge of rape in the first degree; Phillips was indicted and tried separately.

As to the first assigned error, the defendant was not entitled specifically to his particular requested instructions, but only to have his theory of the case presented to the jury if there was evidence to support it. State v. Ollison, 16 Or.App. 544, 548, 519 P.2d 393 (1974). The essence of the mistake of fact instruction, Supra n 2, in this context is that it would allow the jury to find that intent was lacking. The trial court did instruct the jury that the state had the burden to prove beyond a reasonable doubt each allegation of the indictment, including the intent elements in the use of forcible compulsion.

Defendant argues further that the statutory definition of "knowingly" should have been given to the jury upon defendant's request. The trial court instructed the jury that "(t)erms not specifically defined in these instructions are to be given their general known and understood meanings." Although defendant argues that "knowingly" may signify a range of intents in different contexts, we think that in this context the meaning is fairly obvious: to denote that the defendant was aware that he was using force to compel the victim to submit to him. The instructions given ⁷ were sufficient to present defendant's theory of the case to the jury, and the content of those instructions was within the broad discretion of the trial court in charging the jury. ORS 17.255(1); State v. Jones, 11 Or.App. 129, 134-35, 500 P.2d 1225 (1972), Rev den (1973).

That the indictment only accuses a defendant of perpetrating a criminal act does not prevent his being found guilty as an aider and abettor. ⁸ State v. LeBrun, 37 Or.App. 411, 416, 587 P.2d 1044 (1978), Rev den 286 Or. 149 (1979). Defendant's sole contention is that there was no evidence of cooperation between defendant and Phillips. ⁹ In addition to the facts related above, which were themselves sufficient, Phillips testified that upon arrival at defendant's apartment, defendant suggested to him that they rape the victim. As we stated in State v. Stark, 7 Or.App. 145, 152, 490 P.2d 511, 514 (1971), " '(T)he least degree of concert or collusion between the parties to an illegal transaction makes the act of one of them the act of all.' " It was not error to give the instruction on aiding and abetting.

Affirmed.

1 ORS 163.375 provides:

"(1) A person who has sexual intercourse with a female commits the crime of rape in the first degree if:

"(a) The female is subjected to forcible compulsion by the male; or

"(b) The female is under 12 years of age; or

"(c) The female is under 16 years of age and is the male's sister, of the whole or half blood, his daughter or his wife's daughter.

"(2) Rape in the first degree is a Class A felony."

2 Defendant's requested instruction:

"If you find that the defendant was honestly mistaken as to a particular fact or circumstance, you are to evaluate the evidence as though the facts were as the defendant believed them to be. You are not to consider whether or not you feel the defendant's mistake was reasonable under the circumstances; but only whether or not he was in fact genuinely mistaken."

3 Defendant's requested instruction:

"A person acts knowingly if he acts with an awareness that his conduct is of a nature so described or that a circumstance so described exists. ORS 161.085."

4 " * * * Where two or more persons are jointly involved with the commission of a crime it is not necessary that it be shown...