State v. Lockhart
| Decision Date | 13 April 2022 |
| Docket Number | A167926 (Control), A167927 |
| Citation | 319 Or.App. 89,508 P.3d 526 (Mem) |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Dnay A. LOCKHART, Defendant-Appellant. |
| Court | Oregon Court of Appeals |
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Shawn Wiley, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent.
Before Lagesen, C.J., and Ortega, Egan, Tookey, Shorr, James, Aoyagi, Powers, Mooney, Kamins, JJ., DeVore, S.J., and DeHoog, J. pro tempore.
Defendant appeals from the judgment of conviction on Count 1, first-degree sodomy, ORS 163.405, and Count 2, first-degree sexual abuse, ORS 163.427, but does not challenge the convictions on Count 3, third-degree sexual abuse, ORS 163.415, and Count 4, contributing to the sexual delinquency of a minor, ORS 163.425. Defendant argues that the evidence was insufficient to permit the jury to find an act of forcible compulsion that is necessary for the first-degree offenses of Counts 1 and 2. Together with colleagues who join this opinion, I conclude that the trial court did not err in denying defendant's motions for judgment of acquittal on Counts 1 and 2.
An appellate court is required to "view the evidence in the light most favorable to the state to determine whether a rational trier of fact, making reasonable inferences, could have found the essential elements of the crime proved beyond a reasonable doubt." State v. Hall , 327 Or. 568, 570, 966 P.2d 208 (1998). The court accepts all "reasonable inferences and reasonable credibility choices" that the jury could have made. State v. Walters , 311 Or. 80, 82-83, 804 P.2d 1164, cert. den. , 501 U.S. 1209, 111 S.Ct. 2807, 115 L.Ed.2d 979 (1991). Those standards dictate how, after a verdict, this court regards two differing versions of the facts.
Before trial began, the trial court directed the parties, as a matter of respect and dignity, to refer to defendant as Ms. Lockhart, by full name, or simply as defendant. In opening statement, defense counsel advised the jury that defendant is transgender, explaining, "She was born male, but she identifies as female." When introducing a defense of consensual contact without force, defense counsel said, "She presents very feminine."
On April 22, 2015, K, the complaining witness, was 16 years old and a few days short of his next birthday. He was between five feet one and five feet two inches tall, weighing between 120-130 pounds. Because he was home-schooled, he spent Wednesdays at the city library for internet access on his computer for online classes. At that time, defendant was 28 years old, five feet eight inches tall and weighed about 150 pounds. At trial, K agreed that defendant was bigger and weighed more, but he did not know that defendant was 11 to 12 years older.
K testified that he met defendant in the children's section of the library. Defendant testified that, being "taken" with K's red hair and piercings, defendant "struck up" a conversation with K. K recalled that they talked about the piercings, skateboarding, and school. K testified that he thought defendant was very attractive and that defendant was "female" due to "long hair" and "body shape." K testified that they were flirting. K testified that defendant did not say anything about defendant being gay or transgender.1
K testified that, after talking, variously estimated at 10 or 30 minutes, defendant asked K to follow defendant. K testified that he followed but did not know where they were going. K thought it was "really weird" but followed defendant into the men's restroom. K testified that he did not know what was going to happen and that he was "just curious." K testified that he was attracted to defendant and that he wanted to kiss defendant. K testified that he followed because defendant asked. He testified that he did not feel coerced, and he repeated that he thought defendant was female.
Defendant and K went into the larger, handicapped stall. K testified that defendant grabbed the door and shut it. Defendant testified that she "locked" the hasp on the door. On cross-examination, K agreed that he could have walked out at any time, but K also testified that defendant was blocking the door to get out—because defendant was standing in front of the door.
K testified that, after defendant closed the door, defendant "pushed [K] down." On direct examination, K testified:
(Emphases added.) On cross-examination, K testified consistently, with some added detail:
(Emphases added.) On cross-examination, K was questioned closely about his response. K testified:
(Emphases added.) K testified that oral sex lasted about two minutes. When asked how the encounter ended, K testified "as fast as possible." He testified that he had no further conversation with defendant and that he did not kiss defendant.
Defendant testified to a consensual encounter. On direct examination, defendant testified that, upon entering the stall, there was touching and fondling. Defendant testified that defendant pulled defendant's pants down and she put her hand up to K's face "in a very endearing sort of way." Defendant testified, "I was like, ‘Come on,’ and [K] did his thing." Asked how long K performed oral sex, defendant described it as a "15 or 20-minute journey." Defendant testified that, as someone entered the restroom, defendant and K left, giggling; that they both went to a library meeting room to talk for about 10 minutes; that defendant was exhilarated, saying "this was my journey of freedom with my spirit," and "that was fun." Defendant testified that they hugged before K left.
The jury was instructed on the four charges alleged, which included first degree sodomy, involving subjecting another to forcible compulsion and oral sexual intercourse, and first-degree sexual abuse, involving forcible compulsion and sexual contact. The instructions included the statutory definition of forcible compulsion.2 The jury found defendant guilty on all four counts.
Like the jury, I must begin with a description of the offenses at issue. A person commits first-degree sodomy when, among other things, a person "engages in oral * * * sexual intercourse with another person" and "[t]he victim is subjected to forcible compulsion by the actor."
person commits first-degree sexual abuse when, among other things, a person "[s]ubjects another person to sexual contact" and "[t]he victim is subjected to forcible compulsion by the actor." ORS 163.427(1)(a)(B).4 Oregon statute explains that " ‘[s]exual contact’ means any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party." ORS 163.305(5). As applicable here, " ‘[f]orcible compulsion’ means...
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