State v. Bernhardt

376 P.3d 316, 277 Or. App. 868, 2016 Ore. App. LEXIS 505
CourtCourt of Appeals of Oregon
DecidedApril 27, 2016
Docket211211071; A152817
StatusPublished
Cited by3 cases

This text of 376 P.3d 316 (State v. Bernhardt) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Bernhardt, 376 P.3d 316, 277 Or. App. 868, 2016 Ore. App. LEXIS 505 (Or. Ct. App. 2016).

Opinion

TOOKEY, J.

Defendant appeals a judgment of conviction, following a jury trial, for sexual abuse in the second degree in violation of ORS 163.425.1 The jury found defendant guilty for knowingly subjecting the minor victim to deviate sexual intercourse without her consent. In his first assignment of error, defendant argues that the trial court erred when it denied his motion for judgment of acquittal because the state failed to prove that the victim did not consent to deviate sexual intercourse. In his second assignment of error, defendant argues that the trial court erred when it denied his requests to argue to the jury that the term “subjects,” as used in ORS 163.425, is an element of the crime and requires the state to prove beyond a reasonable doubt that the defendant exerted some control over the victim. We conclude that when an adult, acting with the requisite culpable mental state, has deviate sexual intercourse with a minor who is legally incapable of giving consent, ORS 163.425(l)(a) does not require the state to prove that the adult exerted control over the minor victim or that the minor victim did not actually consent. Accordingly, we affirm.

Defendant’s assignments of error present the same legal question—whether the trial court’s rulings were based on a proper interpretation of ORS 163.425(1)(a).2 “A trial court’s interpretation of a statute is reviewed for legal error.” State v. Thompson, 328 Or 248, 256, 971 P2d 879, cert den, 527 US 1042 (1999).

We begin with defendant’s first assignment of error concerning the trial court’s denial of his motion for judgment [870]*870of acquittal. After we settle the legal issue of what the element “does not consent” means, we view “the evidence in the light most favorable to the state” to determine whether a “rational trier of fact could have found that the essential elements of the crime had been proved beyond a reasonable doubt.” State v. Paragon, 195 Or App 265, 267, 97 P3d 691 (2004). In accordance with that standard, “we state the facts in the light most favorable to the state.” State v. Massei, 247 Or App 30, 32, 268 P3d 774 (2011).

Defendant, who was 29 years old, picked up B, a 16-year-old girl, in his truck and took her to the farthest parking area at the north jetty in Florence, Oregon. After they took a walk on the beach, defendant and B got back into his truck. B took defendant’s pants off, performed oral sex on him for “less than 10 minutes,” and defendant put his hands down her pants. Defendant had an erection and did not attempt to push B away or tell her to stop when she took his pants off or when she began performing oral sex on him. Defendant was charged with, among other things, one count of sexual abuse in the second degree. At trial, B testified that she had initiated the oral sex and the state introduced no evidence that the deviate sexual intercourse was against B’s will.

Defendant moved for judgment of acquittal when the state rested its case and renewed the motion prior to closing arguments, contending that the state had failed to prove the victim did not consent. The trial court denied defendant’s motion both times, reasoning that a rational trier of fact could find that the victim did not consent because of her legal incapacity to give actual consent as a minor. As noted above, defendant was subsequently convicted of one count of second-degree sexual abuse. On appeal, defendant reprises the argument he made to the trial court—that the state failed to prove that the minor victim did not consent to deviate sexual intercourse.

Defendant’s argument regarding B’s consent is foreclosed by State v. Ofodrinwa, 353 Or 507, 300 P3d 154 (2013). In Ofodrinwa, the Supreme Court construed ORS 163.425 and concluded that the legislature intended the phrase “does not consent” to include sexual conduct with individuals [871]*871legally incapable of consent, regardless of whether the conduct actually is against their will. 353 Or at 519 (“A person who is incapable of giving consent stands in the same position as one who elects not to give it; in each case, the person ‘does not consent.’”); see also State v. Stamper, 197 Or App 413, 427, 106 P3d 172, rev den, 339 Or 230 (2005) (“[0]ur best judgment is that the legislature intended the phrase ‘the victim does not consent’ [in ORS 163.425] to apply either to actual lack of consent or incapacity to consent because the victim was under the age of 18.”). In this case, the state presented evidence that B was 16 years old at the time the deviate sexual intercourse occurred. See ORS 163.315(1)(a) (“A person is considered incapable of consenting to a sexual act if the person is * * * [u]nder 18 years of age[.]”). We conclude that the trial court did not err when it denied defendant’s motion for judgment of acquittal.

We turn to defendant’s second assignment of error. As previously noted, defendant argues that the trial court erred when it denied his requests to argue to the jury that the term “subjects,” as used in ORS 163.425, is an element of the crime and requires the state to prove beyond a reasonable doubt that defendant exerted some control over the victim. At trial, defendant argued that “‘subjects’ means to cause to undergo or to submit to. Subrogate. To make oneself amenable to the discipline or control of a superior.” Defendant contended that he should be able to argue that the state did not prove that defendant knowingly subjected B to deviate sexual intercourse because defendant did not initiate the deviate sexual intercourse or cause it to happen. The state responded that “the word ‘subject’ has many different meanings, but the three [the state] wantfed] to highlight to the Court [from the dictionary] here would be * * * [t] o make liable or vulnerable or expose.” The state continued, stating that, if “[defendant] presents his erection for her to put her mouth on, that he has facilitated or exposed her [to] * * * that type of activity.” The trial court declined defendant’s request to argue his interpretation of ORS 163.425 to the jury, stating:

“[W]hat I am stating for the record is that *** my read of ‘knowingly subjected’ means simply that * * * he was able to [872]*872form the intent to participate, not that he was the aggressor or that he initiated it or that he compelled it.
«‡⅜⅜‡⅜
“What you cannot do is make any argument to the jury that if she started it, then the State has not proven the case. *** [Y]ou both made arguments about what ‘knowingly subjected’ means.

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Cite This Page — Counsel Stack

Bluebook (online)
376 P.3d 316, 277 Or. App. 868, 2016 Ore. App. LEXIS 505, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-bernhardt-orctapp-2016.