State v. O'Hara

• Citation: 283 P.3d 396,251 Or.App. 244
• Decision Date: 18 July 2012
• Docket Number: CR0901452,A146327.
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Kevin Michael O'HARA, Defendant–Appellant.
• Court: Oregon Court of Appeals

251 Or.App. 244

283 P.3d 396

STATE of Oregon, Plaintiff–Respondent,

v.Kevin Michael O'HARA, Defendant–Appellant.

CR0901452; A146327.

Court of Appeals of Oregon.

Argued and Submitted Dec. 14, 2011.

Decided July 18, 2012.

Bronson D. James, Portland, argued the cause for appellant. With him on the opening and reply briefs was JDL Attorneys LLP. Kevin Michael O'Hara filed the supplemental brief pro se.

Shannon T. Reel, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General.

Before BREWER, Presiding Judge, and HASELTON, Chief Judge.^*

BREWER, P.J.

Defendant appeals a judgment of conviction for first-degree rape, ORS 163.375, and first-degree sexual abuse, ORS 163.427. Defendant assigns error to the trial court's denial of his motion for a judgment of acquittal on both charges on the ground that the state did not present sufficient evidence of forcible compulsion, a common element of both offenses. Defendant also makes two other assignments of error, which we reject without extended discussion. We affirm.

We review the trial court's denial of a motion for judgment of acquittal to determine whether, viewing the evidence in the light most favorable to the state, a rational trier of fact could have found that the state proved all of the essential elements of the crime beyond a reasonable doubt. State v. Lockamy, 227 Or.App. 108, 113, 204 P.3d 822 (2009). Defendant was a close friend of the victim's parents. The victim had known defendant since she was a young child, and she referred to him as “Uncle Kevin.” In June 2002, when the victim was 14 years old, her parents took a long weekend trip and asked defendant to babysit the victim and her two younger brothers. Defendant stayed in one of the boys' bedrooms, which connected with the victim's bedroom through a shared bathroom.

On that Saturday evening, after the victim's brothers had gone to bed, the victim and defendant watched television, and defendant asked the victim if she had ever had sex. He told the victim several times that she was beautiful, sexy, and very pretty. Defendant told the victim about having sex with his girlfriend and how she liked it. When a commercial for a phone sex line appeared on the television, defendant told the victim that he often called such numbers and pressed the victim to call the number. She refused and went upstairs to go to bed.

Defendant later called the victim on her personal phone line to ask where the towels were in the shared bathroom. She told him where they were, but defendant asked her to bring him one. When she went into his room and set the towel on the bed, defendant grabbed her hand. Defendant told her she was pretty, beautiful, and sexy, put his hand on her stomach, and kissed her. Defendant continued to tell the victim that she was beautiful and sexy, kissed her and rubbed her stomach, and then moved his hand up to her breast. He then lifted up one of the victim's arms, while she lifted the other, in order to remove her shirt. The victim testified that she lifted her arm up because she was scared and did not know what to do. She was crying.

Defendant touched her chest, kissed her neck and chest, and then pushed her onto the bed. She testified that,

“[h]e didn't shove me. I didn't think he was going to kill me, but he's over 200 pounds. I was closer to 100 or something. I mean, he had enough force and body weight to push me down.”

Defendant then pulled her shorts and underwear down, pulled his own shorts off, and had sexual intercourse with the victim. Defendant held the victim's wrists and forearms above her head, against the bed. He also touched her breast again. The victim was “crying and crying” and told defendant that she did not want to be there and that she “[did not] want this.” The victim disclosed the incident to her parents several years later.

The state charged defendant with one count of first-degree rape and two counts of first-degree sexual abuse. The state ultimately dismissed one of the first-degree sexual abuse counts. At the conclusion of the state's case-in-chief, defendant moved for a judgment of acquittal on the two remaining counts, arguing, among other things, that there was insufficient evidence to establish the element of forcible compulsion for each of the charged crimes. The trial court denied that motion. The jury found defendant guilty of both offenses. Defendant appeals from the ensuing judgment of conviction.

On appeal, defendant renews his challenge to the trial court's denial of his motion for judgment of acquittal. Defendant argues that, particularly in light of the Supreme Court's recent decision in State v. Marshall, 350 Or. 208, 253 P.3d 1017 (2011), the trial court erred in denying his motion.

ORS 163.375(1)(a) defines the crime of first-degree rape as follows:

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

“(a) The victim is subjected to forcible compulsion by the person[.]”

ORS 163.427 defines the crime of first-degree sexual abuse as follows:

“(1) A person commits the crime of sexual abuse in the first degree when that person:

“(a) Subjects another person to sexual contact and:

“(A) The victim is less than 14 years of age;

“(B) The victim is subjected to forcible compulsion by the actor; or

“(C) The victim is incapable of consent by reason of being mentally defective, mentally incapacitated or physically helpless; or

“(b) Intentionally causes a person under 18 years of age to touch or contact the mouth, anus or sex organs of an animal for the purpose of arousing or gratifying the sexual desire of a person.”

As noted, defendant contends that the trial court erred in denying his motion for a judgment of acquittal with respect to both charged offenses because the state failed to present legally sufficient evidence of forcible compulsion. Accordingly, the issue presented is whether, from the evidence adduced at trial, a rational trier of fact could find that the victim submitted to the sexual conduct at issue as a result of forcible compulsion.

The term “forcible compulsion,” as it applies to both charged offenses, is defined by ORS 163.305(2):

“ ‘Forcible compulsion’ means to compel by:

“(a) Physical force; or

“(b) A threat, express or implied, that places a person in fear of immediate or future death or physical injury to self or another person, or in fear that the person or another person will immediately or in the future be kidnapped.”

Under that definition, forcible compulsion may be accomplished by either physical force or an express or implied threat. In this case, the state relied on a “physical force” theory. In support of their competing arguments about the sufficiency of the evidence, both parties primarily rely on the Supreme Court's decision in Marshall. Accordingly, we begin our analysis with that case.

In Marshall, the court examined the physical force aspect of forcible compulsion in the context of a first-degree sexual abuse case. The court addressed the issues of whether the forcible compulsion element of a sexual offense “must in some sense cause or result in the sexual contact” and “whether the term ‘forcible compulsion’ contemplates a particular level of physical force.” 350 Or. at 216, 253 P.3d 1017. As to the first issue, the court explained that there is a “causal relationship between the actor's use of physical force and the victim's submission to, or engagement in, the sexual contact.” Id. at 218, 253 P.3d 1017. Furthermore,

“a single act of forcible compulsion that accompanies multiple acts of sexual contact does not necessarily transform each of those sexual contacts into separate instances of first-degree sexual abuse. Instead, for each of the sexual contacts that the state charges, the state must rely on an act of ‘forcible compulsion’ that bears some causal relationship to the sexual contact: It must, in some sense, result in that particular sexual contact.”

Id. at 219, 253 P.3d 1017 (emphasis in original).

With respect to the level of physical force required by the statute, the state

“must show that the physical force that the defendant used was greater in degree or different in kind from the simple movement and contact that is inherent in the [sexual contact at issue] and that the force was sufficient to compel the victim to submit to or engage in the sexual contact, against the victim's will.

Id. at 227, 253 P.3d 1017. Furthermore,

“The physical force must be sufficient to ‘compel’ the victim, against the victim's will, to submit to or engage in the sexual contact, but it need not rise to the level of violence. The question ordinarily will be one of degree.

“ * * * * *

“Moreover, the degree or kind of physical force that will be sufficient may depend on the type of sexual contact that the state alleges. As noted, ORS 163.305(6) encompasses both sexual contact that occurs when a person ‘touch [es] * * * the sexual or other intimate parts of [another]’ and sexual contact that occurs when a person ‘caus[es]’ another' to touch the sexual or other intimate parts of the actor.' When a defendant subjects a victim to the first type of sexual contact—defendant touching victim—the defendant's own physical act may range from no, or minimal, ‘physical force,’ such as occurs in a momentary contact or brushing against the victim, to a violent groping or injurious sexual assault that clearly constitutes forcible compulsion. A defendant's conduct can only constitute first-degree sexual abuse when the defendant uses physical force that is greater in degree or different in kind from the simple movement and contact inherent in the act of touching.

“ * * * * *

“Finally, the force that is sufficient to ‘compel’ one person to submit to or engage in a sexual contact against his or her will may be different from that which is sufficient to compel another person to do so. In determining...