State v. Forsyth

• Decision Date: 28 May 1975
• Citation: 20 Or.App. 624,533 P.2d 176
• Parties: STATE of Oregon, Respondent, v. Ronald G. FORSYTH, Appellant.
• Court: Oregon Court of Appeals

Page 176

533 P.2d 176

20 Or.App. 624

STATE of Oregon, Respondent, v. Ronald G. FORSYTH, Appellant.

Court of Appeals of Oregon.

Argued and Submitted Feb. 21, 1975.

Decided March 24, 1975.

Rehearing Denied April 30, 1975.

Review Denied May 28, 1975.

Howard R. Lonergan, Portland, argued the cause and filed the briefs for appellant. A supplemental brief was filed for appellant by Martha Goldin and Saltzman & Goldin, Hollywood, Cal. and Howard R. Lonergan, Portland.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the briefs were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and FOLEY and FORT, JJ.

FORT, Judge.

Defendant was indicted on a charge of rape in the first degree in violation of ORS 163.375. Following a jury trial he was convicted on said charge and sentenced to an indeterminate term of imprisonment not to exceed seven years.

Defendant first challenges the trial court's failure to grant his motion for directed verdict. On review we look to the evidence most favorable to the state's case and determine whether such is sufficient to allow a jury to infer defendant's guilt beyond a reasonable doubt. State v. Gross, Or.App., 99 Adv.Sh. 1987, 526 P.2d 1050 (1974).

The prosecutrix was scheduled to be at work at 7 a.m. on the day in question. She overslept and was unable to catch the bus she had hoped to take to her downtown place of employment. Shortly before 6:30 a.m., while she was anxiously awaiting a second bus, defendant offered her a ride downtown. Fearing that she would otherwise be late for work, she accepted. In order 'to be on the safe side,' she told him that she had to be at work at 6:30.

On the pretense of looking for a friend's apartment in order to give him a ride the defendant drove to Water Avenue in the Portland riverfront area. He stopped the car by some railroad tracks, reached over, and grabbed the prosecutrix by the shoulders. Her glasses flew to the driver's side of the car and were damaged. Her testimony continued:

'A I started fighting and flinging my arms wildly so that I thought I could hurt him and I could get out of the car. I tried to unlock the doors, but he kept pushing the little button back down. When I would unlock them he would push it back down and lock it. And I remember somehow I got onto the driver's side of the car and I tried to unlock that side too, but he had locked it.

'Q How did you get from the passenger side to the driver's side?

'A I was just fighting.

'Q Did you ever hit him?

'A Yes, I did.

'Q How did that happen?

'A I was just flinging my arms and I must have smacked him in the nose, because he grabbed me then and he shook me and he said, 'Look, I'm stronger than you and if you don't behave yourself I'll hurt you.' And I was so scared.'

The prosecutrix further testified that at about this time she attempted to open an avenue of escape by suggesting that they move to the back seat of the car to have intercourse. Defendant contends this statement is sufficient alone to support his motion. The following transpired on cross-examination:

'A I said 'Okay, okay. Let's get in the back seat.'

'Q And when you said that, wasn't it your intention to imply to Mr. Forsyth that you had decided it was okay to have intercourse with him? That's a true statement, isn't it?

'A Yes it is. I wanted to run.

'Q But you meant to imply to Mr. Forsyth that it was okay with you to have intercourse with him in the back seat. That's true, isn't it?

'A Yes, it is.

'Q You didn't tell him that it was in the back of your mind to run at this time, did you?

'A No.'

However, according to her testimony defendant refused to allow her at any time to get into the rear seat. Her testimony as to the subsequent events, additionally relied upon by defendant, included the following:

'A * * * He turned me around so that I was leaning against the door with my back and shoulders, and my legs were over by the controls of the car.

'Q Were your pants on or off at that time?

'A They were on.

'Q What happened next?

'A He pushed me down on the seat so that my--just my shoulders and head were against the door.

'Q How did he push you down?

'A He pushed me down on my shoulders.

'Q Did he hold you down?

'A Yes, he did.

'Q What did he do then?

'A He made me move my feet up onto the seat and he started to take my pants down, and I said, 'No.'

* * *

* * *

'Q Did you attempt to stop him?

'A Yes, I did.

'Q How did you do that?

'A I started fighting again.

'Q In what manner?

'A Just flinging my arms.

'Q Did it do any good?

'A No, it didn't.

'Q What happened then?

'A He made me--my legs were up on the seat and he started to pull my pants down and I said, 'No.' And he said--I don't remember what he said, just that I kept saying, 'No, I'm sorry I can't.' And he said he could tell and if I was a virgin he wouldn't do it. And so he pushed me down on the seat so that my head and shoulders were against the car door and he pulled my pants down. And even then I tried to unlock the door by just reaching up like this and unlocking the door, but he immediately locked it.

(Indicating)

'Q What was the next thing you can recall happening, Miss (prosecutrix)?

'A He pulled my pants down so that they were wrapped around my legs. And I remember I kicked off my shoes.

'Q Why did you do that?

* * *

* * *

'A * * *--I was going to kick my pants off and I couldn't get my pants off with my shoes on. And I thought if I could get out of the car I could run.

* * *

* * *

'Q Go on. What happened then?

'A I kicked them off and he forced my legs apart * * *.'

There was also testimony that at 7:09 a.m. on the day in question the police were called to the prosecutrix's place of employment. On arrival at 7:15, one officer testified:

'Q Did you make contact with (prosecutrix)?

'A Yes, sir. I did.

'Q What kind of shape was she in?

'A When we first arrived she was leaning up against a guard stand, something similar to the podium here. She was shaking and she had a very wild look in her eye, almost fear. Close to panic.

* * *

* * *

'Q Did you attempt to talk to Miss (prosecutrix) at that time?

'A Yes, sir. I did. I couldn't get anything really coherent out of her. We got a license number to an automobile she had written down. And she made some statements that I couldn't understand. They were incoherent and really not understandable at all.'

The officer testified on cross-examination:

'Q And from time to time you see people get upset because they feel guilty; don't you?

'A Yes, sir.'

And on redirect:

'Q Did Miss (prosecutrix) appear to you to be acting guilty like these other persons you testified to?

'A No, sir. What I recognized was the fear and being afraid.'

The testimony further showed that the defendant and the prosecutrix were complete strangers to one another at the time she got into his car.

Defendant contends that the evidence showed as a matter of law the victim's consent to sexual intercourse, and a lack of the requisite force or threat of force.

ORS 163.375(1) provides in pertinent part:

'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 * * *.'

'Forcible compulsion' is defined in ORS 163.305(3) as 'physical force that overcomes earnest resistance; or a threat, expressed or implied, that places a person in fear of immediate death or serious physical injury to himself or another person * * *.'

The Commentary to Oregon's 1971 Criminal Code sets forth the following discussion of the subject elements of the crime:

'The other two elements of the crime of rape, I.e., force and the absence of consent of the victimized female, are closely connected in proof of fact. Proof of these two elements is dependent upon proof of resistance. This rule was stated in State v. Colestock, 41 Or. 9, 67 P. 418 (1902):

"While it may be expected in such cases, from the nature of the crime, that the utmost reluctance would be manifested, and the utmost resistance made which the circumstances of a particular case would allow, still, to hold, as a matter of law, that such manifestation and resistance are essential to the existence of the crime, so that the crime could not be committed if they were wanting, would be going farther than any well-considered case in criminal law has hitherto gone . . . This importance of resistance is simply to show two elements in the crime,--carnal knowledge by force by one of the parties, and nonconsent thereto by the other. These are essential elements and the whole question is one of fact for the jury.' (Emphasis supplied.) At 12, 67 P. 418.

'The necessity and amount of resistance was considered at length in State v. Risen, supra (192 Or. 557, 235 P.2d 764 (1951)) at 561--562, 235 P.2d 764:

"The woman must resist by more than mere words. Her resistance must be reasonably proportionate to her strength and her opportunities. It must not be a mere pretended resistance, but in good faith and continued to the extent of the woman's ability until the act has been consummated. 44 Am.Jur., Rape, § 7; People v. Dohring, 59 N.Y. 374, 17 Am.Rep. 349, 355; Mills v. United States, 164 U.S. 644, 648, 17 S.Ct. 210, 41 L.Ed. 584; Brown v. State, 127 Wis. 193, 199, 106 N.W. 536; Bailey v. Commonwealth, 82 Va. 107, 3 Am.St.Rep. 89. * * *'

'State v. Christensen, 119 Or. 333, 249 P. 366 (1926), and State v. Cook, 242 Or. 509, 411 P.2d 78 (1966), stand for the proposition that actual force is not necessary, but rather only a threat of force sufficient to overcome the resistance of the female. State v. Christensen, 119 Or., at 335, 249 P. 366 cites 22 RCL 1185 as stating:

"Consent of the woman from fear of personal violence is void, and though a man lays no hands on a woman, yet, if by an array of physical force, he so overpowers her mind that she dares not resist or she ceases resistance through fear of great harm, the consummation of...