State v. Jessen

• Decision Date: 15 September 1999
• Citation: 986 P.2d 684,162 Or. App. 662
• Parties: STATE of Oregon, Respondent, v. Timothy Michael JESSEN, Appellant.
• Court: Oregon Court of Appeals

986 P.2d 684

162 Or. App. 662

STATE of Oregon, Respondent, v. Timothy Michael JESSEN, Appellant.

(CR96-448; CA A99774)

Court of Appeals of Oregon.

Argued and Submitted April 5, 1999.

Decided September 15, 1999.

Frank E. Stoller, Dundee, argued the cause and filed the brief for appellant.

Katherine H. Waldo, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

BREWER, J.

Defendant appeals from his convictions on three counts of attempted rape in the second degree, ORS 161.405¹ and ORS 163.365.² Defendant asserts that there was insufficient evidence to prove that he engaged in conduct constituting a substantial step toward the commission of those crimes and, therefore, that the trial court erred in denying his motions for judgment of acquittal. For the following reasons, we affirm.

In reviewing the denial of a motion for judgment of acquittal, we resolve any conflicts in the evidence in favor of the state and give the state the benefit of all inferences that can reasonably be drawn from the evidence. State v. Krummacher, 269 Or. 125, 137, 523 P.2d 1009 (1974). In the light most favorable to the state, the evidence established the following facts.

On three occasions defendant approached his 13-year-old adopted daughter and asked her to have sexual intercourse with him.³ The first incident occurred in defendant's car when defendant was taking his daughter to school. About the time they arrived at school, defendant told his daughter that he wanted to teach her how to have sex. He also told his daughter that if she wanted more freedom to go out with friends, she had to have sex with him. The daughter declined and left the car at school. About two weeks later, defendant and his daughter were at home having dinner together while other family members may have been present in other parts of the residence. Defendant again told his daughter that if she wanted to have more freedom from Parental restraints, she had to have sex with him. He also repeated that it was time for her to learn to have sex. The daughter responded this time by leaving and going to a friend's house. She also told her mother about defendant's actions, and her mother told defendant to leave their daughter alone. However, several weeks later, while they were visiting relatives, defendant asked his daughter if she had thought any further about having sex with him. He reminded his daughter that he would give her all the freedom she wanted and that it was his role to teach her to have sex. Besides asking his daughter to have sexual intercourse with him on those occasions and offering her "more freedom" in return, defendant never expressly threatened her, never touched her, and never offered her money in return for sex. Although the daughter felt that she had sufficient freedom, she still considered defendant's offer of more freedom more valuable than money.

Shortly after the third incident, the daughter again told her mother about defendant's conduct. The child's mother and defendant quarreled, and the child's mother once more told defendant to leave their daughter alone. Defendant apologized and said it would never happen again. At about the same time, defendant told a friend that he had asked his daughter for sex and that she had turned him down. Defendant also admitted that he would have had sex with his daughter had she consented. Several months later defendant again propositioned his daughter for sexual intercourse. At that time, defendant was reported to the police and to Services to Children and Families (SCF). Defendant admitted to the SCF investigator that he had "sexual fantasies" about his daughter and wanted to have sexual intercourse with her.

Defendant was arrested and charged with three counts of attempted second degree rape. At trial, defendant twice moved for judgment of acquittal on all counts. The trial court denied both motions, reasoning that defendant's repeated solicitation of sexual intercourse coupled with defendant's statements to his friend provided sufficient evidence for a jury to render a guilty verdict. The trial court concluded that the context of the solicitations was especially important because, among other reasons, defendant was an authority figure for his daughter and because defendant offered something of value—"more freedom"—to his daughter. Defendant was subsequently found guilty and convicted on all three counts of attempted rape in the second degree. On appeal, defendant assigns error to the denial of his motions for judgment of acquittal. In reviewing the denial of a motion for judgment of acquittal, we determine whether the evidence was sufficient to permit the jury to find the defendant guilty beyond a reasonable doubt. Krummacher, 269 Or. at 138,523 P.2d 1009.

To prove that defendant committed the offense of attempted rape in the second degree, the state was required to establish that defendant "intentionally engage[d] in conduct which constitute[d] a substantial step" toward having sexual intercourse with his daughter, a child under 14 years old. ORS 161.405; ORS 163.365. The state was not required to establish that defendant attempted sexual intercourse by forcible compulsion, because even consensual sexual intercourse with a person under 14 years of age constitutes second degree rape. Defendant does not dispute that the evidence was sufficient to prove that he intended to ask his daughter to have consensual sexual intercourse with him. Instead, defendant asserts that his verbal enticements to his daughter were not "conduct" within the meaning of ORS 161.405. Alternatively, defendant argues that his actions did not constitute a "substantial step" toward the commission of rape in the second degree. We address each argument in turn.

Defendant contends that the utterance of words without a concomitant physical act cannot constitute "conduct" within the meaning of ORS 161.405. Because defendant's argument presents a question of statutory construction, we must examine the text and context of ORS 161.405 and, if necessary, its legislative history and other aids of construction in order to discern the meaning of "conduct" as used in that statute. PGE v. Bureau of Labor & Industries, 317 Or. 606, 610-12, 859 P.2d 1143 (1993).

The text of the statute is our starting point, because it is the best evidence of legislative intent. Id. at 610, 859 P.2d 1143. However, the text of ORS 161.405 provides no guidance as to the meaning of "conduct"; therefore, we turn to the context of the statute, which includes the provisions of other related statutes. State v. Guzek, 322 Or. 245, 253, 906 P.2d 272 (1995). The legislature has generally defined the word "conduct" for purposes of the criminal code. ORS 161.085(4) provides "unless the context requires otherwise * * * `[c]onduct' means an act or omission and its accompanying state of mind." An "act" means a "bodily movement." ORS 161.085(1). The parties agree that those definitions control the analysis but disagree as to whether the act of speaking constitutes bodily movement. Because "bodily movement" is not defined by statute, we turn to its plain and ordinary meaning. PGE, 317 Or. at 611, 859 P.2d 1143.

"Bodily" means "of or relating to the body." Webster's Third New Int'l Dictionary, 245 (unabridged ed 1993). "Movement" means "the action or process of moving." Id. at 1480. Thus, the ordinary and plain meaning of the phrase "bodily movement" means the action or process of moving a body part. Defendant argues that bodily movement requires something more than moving the mouth and aspirating air over vocal cords. However, the act of speaking necessarily includes moving those and other body parts, including the tongue. Nothing in the text or context of ORS 161.405 suggests that the legislature intended to exclude such bodily movements from the statutory definition of conduct.

A construction of the word "conduct" to include the act of speaking is supported by the Supreme Court's decision in State v. Walters, 311 Or. 80, 85-86, 804 P.2d 1164 (1991), which constitutes part of the context of ORS 161.405. Guzek, 322 Or. at 255,906 P.2d 272. In Walters, the court was required to determine whether the "defendant's conduct constituted a substantial step" so as to support convictions for attempted rape and sodomy of a 13-year-old child. 311 Or. at 85,804 P.2d 1164 (emphasis added and in original). The court held that, taken together, the defendant's verbal enticements to the intended victim, the defendant's corroborating statements to the intended victim's mother and to the police, and the defendant's act of following the intended victim constituted a substantial step toward commission of the crimes of rape, sodomy, and kidnaping. Id. at 86, 804 P.2d 1164. Although the court did not expressly hold that the statements were "conduct," that conclusion is implicit, because the court identified them as actions capable of comprising a substantial step toward the commission of the intended crimes.⁴ Our previous decisions are likewise consistent with the conclusion that the verbal enticement of a prospective victim constitutes conduct qualifying as a substantial step for purposes of attempted sexual offenses. State v. McJunkin, 27 Or.App. 401, 405, 556 P.2d 164,rev. den. (1977) (verbal enticement of nine-year-old child with offer of money, coupled with expressed desire for intercourse supported conviction of attempted first degree rape); Rinkin, 141 Or.App. at 366, 917 P.2d 1035 (verbal enticement of 10-yearold child to engage in sexual activity constituted substantial step toward commission of rape and sodomy).

For the foregoing reasons, we conclude that defendant's verbal...