State v. Gray

• Decision Date: 20 February 2014
• Docket Number: CR110048DV; A149013.
• Citation: 322 P.3d 1094,261 Or.App. 121
• Parties: STATE of Oregon, Plaintiff–Respondent, v. William Matthew GRAY, Defendant–Appellant.
• Court: Oregon Court of Appeals

261 Or.App. 121

322 P.3d 1094

STATE of Oregon, Plaintiff–Respondent,

v.William Matthew GRAY, Defendant–Appellant.

CR110048DV; A149013.

Court of Appeals of Oregon.

Submitted Aug. 28, 2013.

Decided Feb. 20, 2014.

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

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the brief for respondent.

Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.

HASELTON, C. J.

Defendant appeals, following a jury trial, challenging his convictions for rape in the first degree, ORS 163.375 (Count 1), and sexual abuse in the first degree, ORS 163.427 (Count 2).¹ Defendant assigns error to the trial court's failure to instruct the jury that, to find defendant guilty, it must first find that defendant acted with a culpable mental state with respect to the element of “forcible compulsion.” For the reasons explained below, we conclude that the trial court so erred. Accordingly, we reverse and remand with respect to Counts 1 and 2.²

At trial, the complainant, A, and defendant testified to drastically different versions of the encounter that precipitated the charges in this case. Because those differences are material to our consideration of whether to exercise our discretion to correct the purported instructional error, we describe that conflicting testimony here.

At the time of the events underlying defendant's convictions, defendant and A were living together as a married couple. A testified that, in the early morning of January 17, 2011, she awoke in bed when defendant pressed his erect penis against her anus. At that point, she moved away from him. According to A, defendant then pulled her closer and she felt his penis deeper in her anus, at which point she said, “What are you doing? Stop.” A testified that defendant then pulled her shoulder toward him and said, “If you're not going to give it to me, I am going to take it.” Defendant pushed A onto her back. He then got on top of her, put his hands around her neck, and engaged in sexual intercourse with her. During that time, A told him “no” and was crying. A also testified that she and defendant had experimented in their sexual relationship, and that anal sex, hair pulling, and defendant putting his hands on her neck had previously been accepted sexual behavior in their relationship.

For his part, defendant testified that, on the evening of January 16, 2011, he and A had been awake watching a movie when she initiated sex by touching his penis and pulling him on top of her. According to defendant, they engaged in consensual sexual intercourse both in the missionary position and with defendant behind A. Defendant explained that, when he was behind A, he had put his hands on her back, but that when he was on top of A, he had not put his hands on her throat and, in fact, he had to hold himself up or he would crush her due to his large size. Defendant explained that, in his opinion, the red marks on A's throat were a symptom of anger or anxiety, in that A is fair-skinned and, “when she gets real mad, * * * [s]he starts getting splotchy on her neck.” Defendant testified that A did not tell him “no” that night, and that he did not attempt to engage in anal sex with A.

A spoke with a local law enforcement officer about the above-described encounter. The officer took photographs of A's neck, which displayed red blotches on the front of her throat. The state subsequently charged defendant with rape in the first degree (Count 1), ORS 163.375; sexual abuse in the first degree (Count 2), ORS 163.427; sexual abuse in the second degree (Count 3), ORS 163.425; sexual abuse in the first degree (Count 4), ORS 163.427; attempted sodomy in the first degree (Count 5), ORS 163.405; attempted sexual abuse in the second degree (Count 6), ORS 163.425; strangulation (Count 7), ORS 163.187; assault in the fourth degree constituting domestic violence (Count 8), ORS 163.160; and coercion (Count 9), ORS 163.275. With respect to Count 1 and Count 2, the state alleged in the indictment that defendant “did unlawfully and knowingly, by means of forcible compulsion, engage in sexual intercourse with [A],” ORS 163.375(1)(a),³ and that defendant “did unlawfully and knowingly, by means of forcible compulsion, subject [A] to sexual contact by touching her vagina,” ORS 163.427(1)(a)(B).⁴

With respect to Counts 1 and 2, the trial court instructed the jury as follows:

“As to Count 1, rape in the first degree, Oregon law provides that a person commits the crime of rape in the first degree when the person knowingly has sexual intercourse with another person and the other person is subject to forcible compulsion by him.

“In this case, to establish the crime of rape in the first degree, the state must prove beyond a reasonable doubt the following four elements: First, the act occurred in Yamhill County, Oregon; second, the act occurred on or about January 17, 2011; third, [defendant] knowingly had sexual intercourse with [A]; and, four, [A] was subjected to forcible compulsion by [defendant].

“As to Count 2, sexual abuse in the first degree, Oregon law provides that a person commits the crime of sexual abuse in the first degree when the person knowingly subjects another person to sexual contact and the victim is subjected to forcible compulsion by the actor.

“In this case, to establish the crime of sexual abuse in the first degree, the state must prove beyond a reasonable doubt the following four elements: First, the act occurred in Yamhill County, Oregon; second, the act occurred on or about January 17, 2011; third, [defendant] knowingly subjected [A] to sexual contact by touching her vagina; and, fourth, [A] was subjected to forcible compulsion by [defendant].”

Defendant did not take exception to those instructions or propose further instructions to clarify to the jury that the forcible compulsion element of each crime as charged requires a culpable mental state.

The jury acquitted defendant of the counts based on the charges that defendant had touched A's anus (Counts 4, 5, and 6). The jury also acquitted defendant of strangulation (Count 7) and assault in the fourth degree constituting domestic abuse (Count 8).⁵ The jury found defendant guilty of rape in the first degree (Count 1), sexual abuse in the first degree (Count 2), and sexual abuse in the second degree (Count 3), all based on defendant engaging in nonconsensual sexual intercourse with A. The trial court merged Count 3 into Count 1. Defendant received a mandatory minimum sentence of 100 months on Count 1 and a concurrent mandatory minimum sentence of 75 months on Count 2.

Defendant appeals, assigning error to the trial court's failure to instruct the jury that it must find that defendant acted with the requisite culpable mental state with respect to the element of “forcible compulsion” for both the rape and sexual abuse charges. See State v. Nelson, 241 Or.App. 681, 688, 251 P.3d 240 (2011), rev. dismissed,354 Or. 62, 308 P.3d 206 (2012) (so holding). Defendant acknowledges that he failed to request such instructions and that he also failed to take exception to the instructions that the trial court did give—thus, as defendant forthrightly admits, he failed to preserve his present challenge.

Nonpreservation notwithstanding, defendant argues that the error is plain under Nelson. In Nelson, we reversed the defendant's convictions for first-degree rape and first-degree sexual abuse after concluding that the “subjected to forcible compulsion” element of both of those crimes requires a culpable mental state and, therefore, we concluded that the trial court erred in refusing to give the defendant's requested jury instruction that correctly stated that rule. Id. at 689, 251 P.3d 240. Invoking Nelson and (implicitly) State v. Jury, 185 Or.App. 132, 57 P.3d 970 (2002), rev. den.,335 Or. 504, 72 P.3d 636 (2003), defendant asserts that the failure to instruct the jury as to the necessity of finding that he acted with the requisite culpable mental state with respect to forcible compulsion constituted an “error of law apparent on the record,” ORAP 5.45(1), and requests that we exercise our discretion, Ailes v. Portland Meadows, Inc., 312 Or. 376, 382, 823 P.2d 956 (1991), to correct that “plain error.”

Defendant's “plain error” challenge implicates this court's precedents by which we have repeatedly held that ORCP 59 H ⁶ precludesour review of unpreserved purported instructional error in similar circumstances. See, e.g., State v. Ledford, 252 Or.App. 572, 573, 287 P.3d 1278 (2012), rev. den.,353 Or. 209, 297 P.3d 481 (2013) (concluding that, pursuant to ORCP 59 H, the defendant's contention that the trial court committed plain error by failing to instruct the jury that the state was required to prove that defendant knowingly subjected the victim to forcible compulsion was not reviewable) (citing State v. O'Hara, 251 Or.App. 244, 253–54, 283 P.3d 396 (2012), rev. den.,353 Or. 209, 297 P.3d 481 (2013)); see also State v. Guardipee, 239 Or.App. 44, 243 P.3d 149 (2010) (holding that ORCP 59 H bars plain error review of unpreserved objection that the trial court erred in failing to deliver a requested jury instruction); State v. Toth, 213 Or.App. 505, 509, 162 P.3d 317 (2007) (observing that ORCP 59 H generally bars review of unpreserved objections regarding jury instructions).

Those precedents would, indeed, have precluded defendant's present challenge. But they are no longer good law. State v. Vanornum, 354 Or. 614, 317 P.3d 889 (2013).

In Vanornum, the defendant, who had struggled with police officers when they arrested him for disorderly conduct at a public demonstration, was charged with resisting arrest. He raised a defense of self-defense. State v. Vanornum, 250 Or.App. 693, 694, 282 P.3d 908 (2012), rev'd,354 Or. 614...