State v. Waldbillig

• Jurisdiction: Oregon
• Court: Oregon Court of Appeals
• Writing for the Court: ORTEGA, P.J.
• Citation: State v. Waldbillig, 282 Or App 84, 386 P.3d 51 (Or. App. 2016)
• Decision Date: 09 November 2016
• Docket Number: A151453,A151450 (Control),A151451
• Parties: State of Oregon, Plaintiff–Respondent, v. Nicholas Earl Waldbillig, Defendant–Appellant.

282 Or.App. 84

386 P.3d 51

State of Oregon, Plaintiff–Respondent,

v.Nicholas Earl Waldbillig, Defendant–Appellant.

A151450 (Control)

A151451

A151453

Court of Appeals of Oregon.

Argued and submitted March 10, 2015.

November 9, 2016

Stephanie J. Hortsch, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Services. Nicholas Earl Waldbillig filed the supplemental brief pro se.

Pamela J. Walsh, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

ORTEGA, P.J.

In this consolidated criminal appeal, defendant challenges his convictions for second-degree kidnapping, coercion, and two counts each of first-degree sodomy and first-degree sexual abuse.¹ He asserts 10 assignments of error. We write to address only defendant's second and third assignments of error, and reject the rest without written discussion.²

In his second assignment, defendant asserts that the trial court's jury instructions failed to inform the jury that to convict defendant of first-degree sodomy, the state had to prove that he knowingly subjected the victim to forcible compulsion. Similarly, in his third assignment, he claims that the jury instructions failed to inform the jury that to convict him of first-degree sexual abuse, the state had to prove that he intentionally subjected the victim to forcible compulsion. Although defendant maintains that he properly preserved those assignments, he urges us to correct the error as plain error if we disagree. The state asserts that defendant failed to preserve his second and third assignments and that, to the extent the court's instructions are plain error, we should decline to exercise our discretion to correct the error. We conclude that defendant failed to preserve his second and third assignments of error but agree that the court's instructions constitute plain error. Nevertheless, we decline to exercise our discretion to correct the error because the error was harmless. Therefore, we affirm.

We state the relevant background facts in the light most favorable to the state. State v. Washington , 355 Or. 612, 614, 330 P.3d 596 (2014) ( "Because the jury found defendant guilty, we view the evidence presented at trial in the light most favorable to the state."). Because defendant's second and third assignments relate only to his convictions for first-degree sodomy and first-degree sexual abuse, we include only the facts that are necessary to our analysis of those assignments.

Defendant and the victim had dated for several months before the night—September 28, 2010—on which the events of this case occurred. During their relationship, they were sexually active, and the victim agreed to "at least try" anal intercourse with defendant at some point. However, the one time she did so at defendant's urging, the act caused her pain and she started crying and asked defendant to stop. He failed to do so, later telling her that he had not heard her request. The victim believed she had satisfied her agreement to try anal intercourse.

Subsequently, the victim told defendant that she no longer wanted to date him and that they should just be friends. Defendant "kept pestering" the victim to get back together and "wouldn't leave [the victim] alone." After the victim returned home from work on the evening of September 28, 2010, she parked her car in front of her house. She observed defendant exit his car; he then entered the front passenger side of her car. They talked for a "long time" and the conversation started out "[j]ust like all the other times that he wanted to get back together and I kept telling him no. Exactly the same." Defendant told the victim that her ex-boyfriend (with whom the victim was still in contact) had "cheated on [the victim] with [her best friend]." As the conversation continued, the victim became upset and started communicating through text messages and telephone calls with her ex-boyfriend and her best friend. Defendant grew angrier, and while the victim was on the phone with her ex-boyfriend, defendant pulled out a gun and told the victim to tell her ex-boyfriend to "fuck off" and that she "didn't want to talk to him again." After the victim did so and ended the call, defendant took her phone and told her that if she screamed "he would shoot [her] and then shoot anyone else who came out."

Defendant told the victim that they needed to move to his car because "he wanted to have anal sex because that was one thing that [her ex-boyfriend] hadn't done." He informed the victim that if she screamed he would shoot her and then shoot her father. Defendant told the victim that he wanted to go to "the BLM," which the victim understood to be an isolated place where they had previously had sex in his car. The victim convinced defendant to go to Juniper Park, which was closer and in a more populated area. Defendant drove to a parking lot at Juniper Park and parked. He asked the victim "Why are you so jumpy?" and put the gun down to his side and tried to calm the victim down. He then grabbed the gun, put it to his head, "tried firing it," and told the victim that it was "fake." Defendant put the gun down again and "still wanted sex" because the victim had "made a promise and [she] should keep it." Then, despite the victim's protestation, defendant anally penetrated the victim. However, a security officer arrived and shined a spotlight on defendant's car. Defendant got out of the car and spoke with the security guard, who left after a few minutes without speaking with the victim. The victim tried, but could not open the passenger side door of defendant's car from the inside.

After the security guard left, defendant indicated that he would take the victim home. However, he turned off the road and parked in a dirt lot next to railroad tracks, informing the victim that "we were going to finish." After parking the car, defendant aggressively unbuckled the victim's seatbelt and told her to "get in the back and we were going to finish because [she] needed to keep the promise" to engage in anal intercourse. Defendant again forcibly penetrated the victim anally. Afterwards, he drove her home and told her that, if she went to the police, his friends would come after her, her father, and her best friend.

The state indicted defendant of, among other crimes, two counts of first-degree sodomy and two counts of first-degree sexual abuse on the theory that he subjected the victim to deviate sexual intercourse and sexual contact through forcible compulsion. See ORS 163.405 (first-degree sodomy is committed when a person engages in deviate sexual intercourse with another person and the victim is subject to forcible compulsion by the actor); ORS 163.427 (first-degree sexual abuse is committed when a person subjects another person to sexual contact and the victim is subject to forcible compulsion by the actor).

The case proceeded to trial, and, at the close of evidence, the state submitted proposed jury instructions to the trial court. As relevant to this appeal, the instructions for first-degree sodomy and first-degree sexual abuse mimicked an outdated version of the relevant Uniform Criminal Jury Instructions (UCrJI).³ The proposed instruction for first-degree sodomy (UCrJI 1606) provided:

"Oregon law provides that a person commits the crime of sodomy in the first degree if the person knowingly engages in deviate sexual intercourse with another person and if the victim is subjected to forcible compulsion by the defendant.

"In this case, to establish the crime of sodomy in the first degree, the state must prove beyond a reasonable doubt the following four elements:

"(1) The act occurred in Deschutes County, Oregon;

"(2) The act occurred on or about September 29[ ], 2010;

"(3) [Defendant] knowingly had deviate sexual intercourse with [the victim]; and

"(4) [The victim] was subjected to forcible compulsion by the defendant."

Similarly, the instruction for first-degree sexual abuse (UCrJI 1611) provided:

"Oregon law provides that a person commits the crime of sexual abuse in the first degree when the person intentionally subjects another person to sexual contact and the victim is subjected to forcible compulsion by the actor.

"In this case, to establish the crime of sexual abuse in the first degree, the state must prove beyond a reasonable doubt the following four elements:

"(1) The act occurred in Deschutes County, Oregon;

"(2) The act occurred on or about September 29[ ], 2010;

"(3) [Defendant] intentionally subjected [the victim] to sexual contact; and"(4) [The victim] was subjected to forcible compulsion by [d]efendant."

On appeal, defendant asserts that those instructions were erroneous because they did not tell the jury that it had to find beyond a reasonable doubt that defendant had knowingly subjected the victim to forcible compulsion to convict him of first-degree sodomy and failed to inform the jury that it had to find beyond a reasonable doubt that defendant had intentionally subjected the victim to forcible compulsion to convict him of first-degree sexual abuse. That is, the instructions failed to inform the jury that it must find a culpable mental state with respect to the "subjected to forcible compulsion" element of the charged crimes.

Defendant is correct that the instructions were erroneous. In a decision issued about one year before the trial in this case, we held that the "subjected to forcible compulsion" element in the first-degree rape and first-degree sexual abuse statutes "necessarily requires a culpable mental state." State v. Nelson , 241 Or.App. 681, 688, 251 P.3d 240 (2011), rev. dismissed as improvidently allowed , 354 Or. 62, 308 P.3d 206 (2012). Accordingly, we explained in Nelson that the trial court had erred when it refused to give an instruction that the jury had to ...