State v. Thorp

• Court: Oregon Court of Appeals
• Writing for the Court: De MUNIZ, J.
• Citation: State v. Thorp, 2 P.3d 903, 166 Or App 564 (Or. App. 2000)
• Decision Date: 19 April 2000
• Parties: STATE of Oregon, Appellant, v. Justin Edward THORP, Respondent.

2 P.3d 903

166 Or. App. 564

STATE of Oregon, Appellant, v. Justin Edward THORP, Respondent.

(CR97-00753; CA A101900)

Court of Appeals of Oregon, En Banc.

Argued and Submitted April 22, 1999.

September 8, 1999.

Decided April 19, 2000.

Douglas F. Zier, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

David C. Degner, Deputy Public Defender, argued the cause for respondent. With him on the brief was David E. Groom, Public Defender.

Before DEITS, Chief Judge, EDMONDS, De MUNIZ, LANDAU, HASELTON, ARMSTRONG, LINDER, WOLLHEIM and BREWER, Judges.

Taken En Banc September 8, 1999.

De MUNIZ, J.

This is a case about judicial restraint and faithful adherence to our constitutional duty to accord the legislature and the citizens of Oregon substantial deference in fixing the appropriate punishment for criminal behavior. Ultimately, it is the fidelity of the majority of this court to its constitutional duty that controls the outcome of this case.

Defendant was tried and convicted of two counts of rape in the second degree. ORS 163.365. At sentencing, the trial court refused to impose the mandatory minimum sentence of 75 months for the crime of second degree rape required by ORS 137.707, finding that such a sentence would be unconstitutional as applied to this defendant, under Article I, section 16, of the Oregon Constitution.¹ The court instead imposed a sentence of 35 months' imprisonment pursuant to the sentencing guidelines. On appeal, the state seeks reversal and a remand for resentencing on the ground that the trial court erred in failing to impose the statutory mandatory minimum sentence of 75 months. For the reasons set forth below, we reverse and remand for imposition of the 75-month sentence required by ORS 137.707.

The facts of the underlying convictions are not in dispute. Defendant was born July 15, 1980. His "girlfriend," Strobel, was born July 25, 1983. Thus, defendant was three years and 10 days older than Strobel. On two different occasions, October 20 and 21, 1996, Strobel came to the house where defendant was staying. Each time, she went into the bedroom where defendant was sleeping. She woke defendant up, joined him in the bed, and engaged in sexual foreplay. Defendant and Strobel then engaged in sexual intercourse.

Under ORS 163.365, "[a] person who has sexual intercourse with another person commits the crime of rape in the second degree if the other person is under 14 years of age." A defendant charged with rape in the second degree has a complete defense to the charge if "the victim's lack of consent was due solely to incapacity to consent by reason of being less than a specified age, [and the defendant] was less than three years older than the victim at the time of the alleged offense." ORS 163.345(1). Because Strobel was under the age of 14 at the time of the offenses, and because defendant was more than three years older than she was, defendant violated ORS 163.365 when he had sexual intercourse with her. Strobel's inability to consent was due solely to her age.

Defendant's convictions for these crimes are not at issue on appeal. The only issue is whether the trial court correctly determined that a mandatory minimum prison sentence of 75 months for these crimes would constitute cruel and unusual punishment under the circumstances.

At sentencing, the state presented evidence that defendant had been referred to the juvenile department 14 times, for activities such as theft, carrying a concealed weapon, minor in possession, unauthorized entry into a motor vehicle, and curfew violations. The state also presented evidence that, after the crimes at issue here, defendant had been adjudicated on a charge of third degree robbery and committed to MacLaren² for a period of five years. Defendant admitted membership in a gang, and the state presented evidence by MacLaren staff that defendant was believed to be involved in gang activity at MacLaren.³ For that reason, the staff viewed him as only marginally amenable to treatment. The police officer who initially investigated the present crimes testified that he had become familiar with defendant in 1995 because defendant and other gang members often "hung around" in a local mall. The officer opined that defendant was devious and adept at manipulating adults.

A letter from Strobel was introduced into evidence:

"When I first met Justin, my friend told him that I was 14 or 15 when I wasn't. He really didn't know how old I was for quite a while. As far as I am concerned, Justin didn't do anything wrong. From the beginning I never thought that these charges should have been made against Justin. I still think this whole thing is stupid and should have never been pursued. As far as I am concerned, I was never a victim of rape. I don't think the DA thought I was a victim either because even though I wanted to talk to her, she never would talk to me. That made me feel like she really wasn't interested in the truth or justice.

"Maybe what happened wasn't right legally, but we didn't know we were breaking any law. We just thought we were in love, and it happened because we both wanted it to. I know that everybody thinks we are too young to know what love is, but we don't think so. I still love Justin, and I know he still loves me." Strobel's mother, who originally reported the sexual contact between her daughter and defendant to the authorities, also testified that although she did not condone what her daughter and defendant had done, she did not consider "two young kids making love" to be rape. She further stated that she thought that sentencing defendant "to over six years in jail is really cruel and unnecessary, and he doesn't deserve it."

The state presented evidence from Dr. Charlene Sabin, a psychologist, who testified that, when a child under the age of 14 engages in sexual activity, it may harm her self-image. Sabin further opined that, if a child engages in sexual activity because she believes herself to be in love, it may be more detrimental because she might "further internalize that behavior as the way to relate in future relationships." Sabin also indicated that, if the young female's mother condones the sexual activity, it would imply that "sex is the coinage of relationships[.]"

At sentencing, the trial court held that imposition of the mandatory minimum sentence of 75 months for defendant's crime would constitute cruel and unusual punishment, in violation of Article I, section 16, of the Oregon Constitution. The court noted that defendant was troubled and out of control and in need of a structured program to develop work and academic skills. The court found, however, that a sentence of 75 months would be cruel and unusual, given the circumstances of the crimes, and instead imposed a sentence of 35 months of imprisonment. The court stated:

"I do find that the victim in this case, [Strobel], says that she is not a victim. Whether she's a victim is a philosophical question and one that many psychiatrists would disagree with her. I further find that [Strobel] insists vocally that she was a willing participant and that the defendant in this case—at least at that time, October'96—was unaware of her true age.⁴

"I further find that the victim and the victim's mother, who testified in this proceeding, oppose categorically not only the proposed Measure 11 sentence but even the pursuing of a criminal charge in the first place. And I find that their position was vocal and constant, and it came to the attention of this Court even before there was a conviction in this case.

"I further find that had the victim, [Strobel], been ten days older, there would be no crime at all here, none, but she wasn't ten days older."

The court then imposed concurrent sentences on both second degree rape convictions for a total of 35 months, followed by three years of post-prison supervision.

On appeal, the state argues that the trial court erred in holding that the mandatory minimum sentence of 75 months required for the crime of second degree rape was cruel and unusual as applied to the facts of this case. The state's brief devotes a great deal of attention to the sentencing court's diatribe against Measure 11 sentencing. A recitation of the sentencing court's attitude toward Measure 11, and the state's disagreement with the sentencing court, would benefit neither bench nor bar, nor would it contribute to the resolution of this case. We therefore turn to the question of whether the trial court correctly concluded as a matter of law that imposing a sentence of 75 months' imprisonment for defendant's crimes would be cruel and unusual under Article I, section 16, of the Oregon Constitution.

Article I, section 16, of the Oregon constitution provides, in relevant part, that "[c]ruel and unusual punishments shall not be inflicted, but all penalties shall be proportioned to the offense." The test for determining whether a sentence violates the proportionality provision in Article I, section 16, is whether the sentence is "so disproportionate to the offense as to shock the moral sense of all reasonable persons as to what is right and proper." State v. Isom, 313 Or. 391, 401, 837 P.2d 491 (1992). That test was first conceived by the court in Sustar v. County Court of Marion Co., 101 Or. 657, 665, 201 P. 445 (1921). In Sustar, the defendant had been convicted of possession of "moonshine" and, in a writ of review proceeding, argued that his sentence of six months in the county jail and a $500 fine violated the proportionality provision of Article I, section 16.

In rejecting Sustar's constitutional challenge, the court first quoted from Weems v. United States, 217 U.S. 349, 30 S.Ct. 544, 54 L.Ed. 793 (1910), where the Supreme Court in an Eighth Amendment case had stated:

"It is a precept of justice that punishment for crime should be graduated and proportional to the

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