State v. Lockhart

CourtCourt of Appeals of Oregon
Citation319 Or.App. 89,508 P.3d 526 (Mem)
Docket NumberA167926 (Control), A167927
Parties STATE of Oregon, Plaintiff-Respondent, v. Dnay A. LOCKHART, Defendant-Appellant.
Decision Date13 April 2022

319 Or.App. 89
508 P.3d 526 (Mem)

STATE of Oregon, Plaintiff-Respondent,
Dnay A. LOCKHART, Defendant-Appellant.

A167926 (Control), A167927

Court of Appeals of Oregon, En Banc.

Submitted March 10, 2020
Resubmitted en banc June 9, 2021
April 13, 2022

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.

DeVORE, S. J., concurring.

508 P.3d 527
319 Or.App. 91

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

319 Or.App. 92

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

508 P.3d 528

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:

"Q. Okay. When you say [defendant] pushed you down, how—describe exactly how that happened for the jury.
319 Or.App. 93
"A. Pushed me down on the shoulders, pushed me onto the ground on my knees.

"Q. Onto your knees?

"A. Yes.

"Q. And the defendant was standing?

"A. Yeah.

"* * * * *

"Q. Was the defendant clothed or unclothed?

"A. No pants on.

"Q. Okay. And when the defendant took the defendant's pants off, what did you see?

"A. I saw a penis.

"Q. And what did the defendant do when you were pushed down on your knees?

"A. He made me give him oral sex.

"Q. Where did the penis—where did the defendant's penis go?

"A. In my mouth.

"* * * * *

"Q. Is this something you wanted to do?

"A. No.

"Q. * * * [W]hy did you not just leave the stall?

"A. I (indiscernible)—I froze.

"* * * * *

"Q. Okay. And do you recall if the defendant ejaculated?

"A. Yes."

(Emphases added.) On cross-examination, K testified consistently, with some added detail:

"Q. Okay. Shut it [stall door]. And then what happened?

"A. [Defendant ] pushed me down on my knees.

"Q. I'm sorry.
319 Or.App. 94
"A. [Defendant] pushed me down from my shoulder and put me on my knees.

"Q. Now, when you say pushed you down on your shoulder, one hand or two hands?

"A. One hand.

"Q. Which shoulder?

"A. I think it was my right one.

"Q. Right shoulder?

"A. Yeah.

"Q. Where on the ground?

"A. All the way to the ground onto my knees.

"Q. Pushing you down onto your knees? Okay. Then what happened?

"A. [Defendant] took [defendant's] pants off.

"* * * * *

"Q. How was she able to take her pants off while she's holding you down ?

"A. With her other hand , (indiscernible) her pants.

"* * * * *

"Q. At this point did you know she was female—male, I mean?

"A. No.

"Q. So at this point you're still voluntarily doing this otherwise?

"A. No , I didn't know what to do.

"* * * * *

"A. They were sweatpants, (indiscernible).

"Q. And at this point though, until you see her actual male genitalia, you did not know she was male, right?

"A. Yes.

"Q. Okay. So up to the point where you understood that she was female, were you [ ] a willing participant in this?
319 Or.App. 95
"A. When I was pushed down, I wasn't.
508 P.3d 529
"Q. But what—did you resist in any way?

"A. I froze.

"Q. And you were pushed down to your knees.

"A. Yes .

"Q. And then she presented to you as a male, male genitalia; is that correct?

"A. Yes

"Q. Erect?

"A. Yeah."

(Emphases added.) On cross-examination, K was questioned closely about his response. K testified:

"Q. So you—why didn't you get up?

"A. Froze.

"Q. What happened then?

"A. Didn't know what to do.

"Q. What happened then?

"A. [Defendant] put [defendant's] penis in my mouth .

"Q. How did she put her penis in your mouth? Was your mouth open or was it shut?

"A. It was shut .

"Q. So how did she force her penis into your mouth?

"A. I didn't know what to do.

"Q. How did she force her penis into your mouth?

"A. I'm telling you I didn't know what to do, and—

"Q. How did she force her penis into your mouth?

"A. My mouth opened.

"Q. Did you not have the ability to keep your mouth closed at that point?

"A. It [sic ] did but not mentally.

"Q. Physically though?
319 Or.App. 96
"A. I couldn't bring myself to do anything.

"Q. So what did you do?

"A. I let [defendant] do it."

(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,...

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