State v. Callender
| Decision Date | 29 May 2002 |
| Citation | 181 Or. App. 636,47 P.3d 514 |
| Parties | STATE of Oregon, Respondent, v. Detlef Alvin CALLENDER, Appellant. |
| Court | Oregon Court of Appeals |
Garrett A. Richardson, Portland, argued the cause and filed the brief for appellant.
Judy Lucas, Assistant Attorney General, argued the cause for respondent. On the brief were Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, and Ann Kelley, Assistant Attorney General.
Before LANDAU, Presiding Judge, and DEITS, Chief Judge, and BREWER, Judge.
Defendant appeals from his convictions on four counts of first-degree sexual abuse and one count each of first-degree attempted rape,1 first-degree sodomy, and second-degree sexual abuse, each offense involving the same victim. Defendant asserts that the trial court erred in denying his motions for judgment of acquittal on the ground that the evidence at trial was insufficient to support a finding that the victim was "mentally defective" and, thus, incapable of consenting to the sexual conduct underlying the crimes for which defendant was convicted. Defendant also contends that the trial court erred in instructing the jury that it should consider the facts and circumstances surrounding the victim's conduct in determining whether she was incapable of consent by reason of mental defect. We affirm.
Because defendant was convicted, we view the evidence in the light most favorable to the state. State v. Tucker, 315 Or. 321, 325, 845 P.2d 904 (1993). At the time of the offenses, the victim was 19 years old, but she had an IQ of only 40 to 47, and her reading and math skills were at a first grade level. On March 10, 2000, the victim spent the night with her friend, Marcie Sichting. The victim slept on the floor of the bedroom, and Sichting and defendant—who was Sichting's boyfriend—slept in a bed in the same room. During the night, the victim awoke to find defendant inserting his finger into her vagina and touching her vagina with his tongue. The victim testified that defendant stopped touching her after Sichting told him to stop. Defendant then spent the rest of the night in the living room, while Sichting and the victim slept in the bedroom. Defendant testified that, before the March 10 incident, Sichting had told him that the victim wanted to have sexual contact with him. However, the victim testified that she had not told anyone, including defendant, that she wanted him to touch her sexually.
On March 19, the victim again spent the night at Sichting's and defendant's home. On that occasion, the victim and Sichting slept in Sichting's bed, and defendant slept on a chair in the living room. During the night, the victim was awakened by defendant "bit[ing]" her breasts. At some point, defendant also touched the victim's breasts with his hand. The victim told defendant to stop but, once more, he did not stop until Sichting told him to. Later that evening, defendant again came into the bedroom and sat on the bed near the victim. Defendant removed the victim's pants while she slept. While he was touching her breasts and her vagina, the victim awoke. Defendant also touched the victim's thigh with his penis. The victim believed that defendant tried to put his penis inside of her vagina, "but * * * guess[ed] it didn't work." The victim told defendant to stop, but, again, he stopped only after Sichting told him to.
In connection with the March 10 and March 19 episodes, defendant was charged with six counts of first-degree sexual abuse, ORS 163.427,2 two counts of first-degree sodomy, ORS 163.405,3 two counts of first-degree rape, ORS 163.375,4 and two counts of second-degree sexual abuse, ORS 163.425.5 Except for second-degree sexual abuse, each of the charged offenses includes as an element the requirement that the victim must have been incapable of consenting to the sexual conduct by reason of mental defect, mental incapacitation, or physical helplessness, ORS 163.375(1); ORS 163.405(1), or, phrased slightly differently, by reason of being mentally defective, mentally incapacitated, or physically helpless. ORS 163.427(1). With respect to those offenses, the indictment alleged that the victim was incapable of consent by reason of a "mental defect" or being "mentally defective."
At trial, the prosecutor asked the victim several questions relating to her understanding of sex:
On cross-examination, defendant's counsel asked the victim several questions pertaining to her knowledge and understanding of sex:
After the state rested, defendant moved for judgments of acquittal on all counts in which the state alleged that the victim was incapable of consenting to the sexual conduct because she suffered from a mental defect or was mentally defective. Defendant argued that the victim was not mentally defective because she "understood about the mechanics of sex." On a ground unrelated to the mental defect argument, the court granted defendant's motion for acquittal on one of the sodomy counts, but it denied the motion to acquit with respect to the remaining charges. In doing so, the court reasoned that,
At the conclusion of the evidence and arguments, the trial court instructed the jury that being "mentally defective" means that "[a] person suffers from a mental disease or defect that renders the person incapable of appraising the nature of his or her conduct." During deliberations, the jury inquired about the foregoing instruction. In response, the court gave the following supplemental instruction:
"In deciding whether [the victim] suffers from a mental defect that renders her incapable of appraising the nature of her conduct, you should consider [the victim's] understanding of the sexual acts and of the consequences of the sexual acts by considering all the surrounding facts and circumstances in which the sexual acts occurred."
Defendant's attorney objected to the supplemental instruction on the ground that the victim's understanding of the consequences of the sexual conduct was not relevant to her capability to consent to it. The court declined to reinstruct the jury and, as noted, defendant was convicted on four counts of first-degree sexual abuse, the single remaining first-degree sodomy count, and one count each of first-degree attempted rape and second-degree sexual abuse.
On appeal, defendant first assigns error to the trial court's denial of his motions for judgment of acquittal on the counts requiring proof that the victim was incapable of consenting because she suffered from a mental defect. Defendant argues that the state was required—and failed—to prove that the victim had a "total absence of capacity to appraise the conduct."6 The state responds that the evidence showed that the victim was incapable of consent by reason of a "mental defect," notwithstanding that she was aware "that a physical act [wa]s occurring."
The parties' disagreement as to the proper application of the "mental defect" standard in ORS 163.305(3) poses a problem of statutory construction. When interpreting a statute, we attempt to discern the intent of the legislature by using the methodology set out in PGE v. Bureau of Labor and Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993). In considering statutory text, we give words of common usage their "plain, natural, and ordinary meaning." Id. at 611, 859 P.2d 1143.
ORS 163.315 provides, in part:
Being "mentally defective" means that "a person suffers from a mental disease or defect that renders the person incapable of appraising the nature of the conduct of the person." ORS 163.305(3). Defendant concedes that there was sufficient evidence to prove that the victim suffered from a mental defect. However, he contends that there was no evidence that she was "incapable of appraising the nature of" her conduct as a result of that disease or defect.
The parties do not clearly identify the core of their disagreement as to the meaning of that statutory phrase. Although they focus at various points on the words "incapable" and "appraising," those words do not appear to lie at the heart of the problem. They have fairly straightforward ordinary meanings within the present...
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