State v. Marker

329 P.3d 781, 263 Or. App. 669, 2014 WL 2769176, 2014 Ore. App. LEXIS 807
CourtCourt of Appeals of Oregon
DecidedJune 18, 2014
DocketDV1121520; A151727
StatusPublished
Cited by4 cases

This text of 329 P.3d 781 (State v. Marker) 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. Marker, 329 P.3d 781, 263 Or. App. 669, 2014 WL 2769176, 2014 Ore. App. LEXIS 807 (Or. Ct. App. 2014).

Opinion

TOOKEY, J.

Defendant appeals a judgment of conviction for sexual abuse in the first degree, ORS 163.427, arguing that the trial court erred when it denied his motion for judgment of acquittal. A person commits sexual abuse in the first degree when that person “[s]ubjects another person to sexual contact and * * * [t]he victim is incapable of consent by reason of being *** physically helpless [.]” ORS 163.427(1)(a)(C). A person is “physically helpless” if that person “is unconscious or for any other reason is physically unable to communicate unwillingness to an act.” ORS 163.305(5). The issue in this case is whether a victim who is asleep when the sexual abuse occurs is incapable of consent by reason of being “physically helpless.” We answer that question in the affirmative and, accordingly, affirm.

In reviewing a trial court’s order denying a motion for judgment of acquittal, we “view the evidence in the light most favorable to the state to determine whether a rational factfinder could have found the elements of the crimes in question beyond a reasonable doubt.” State v. Reed, 339 Or 239, 243, 118 P3d 791 (2005). In this case, the relevant facts are undisputed. Defendant and the victim were roommates who, while living together, had a romantic relationship for approximately one month. Soon after the relationship ended, the victim awoke during the night and felt defendant’s “hand in [her] pants in [her] vagina playing with it.” She told defendant to “get out,” and he left the room. Defendant was charged with first-degree sexual abuse and attempted unlawful sexual penetration in the first degree, ORS 163.411.1

At trial, after the state presented its case-in-chief, defendant moved for a judgment of acquittal, asserting that the victim was not physically helpless for purposes of ORS 163.427(1)(a)(C) because, although she was asleep, she was not “unconscious” or otherwise “physically unable to communicate willingness [sic] to an act.” The trial court denied defendant’s motion, concluding that the state had presented [671]*671sufficient evidence that “the victim was asleep at the time that the crime was committed and that that would constitute being physically unable to communicate willingness [.]” A jury found defendant guilty of sexual abuse in the first degree.

The question on appeal is whether a sleeping victim is “physically helpless” for purposes of ORS 163.427(1)(a)(C). As noted, ORS 163.305(5) defines “physically helpless” as “unconscious or for any other reason * * * physically unable to communicate unwillingness to an act.” Thus, we consider whether sleep renders a person either “unconscious” or “for any other reason *** physically unable to communicate unwillingness to an act.”2 When construing a statute, our goal is to discern the legislature’s intent by examining the text and context of the statute, and the legislative history, if useful. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009).

We begin with the text and context of ORS 163.305(5), which was enacted in 1971. Or Laws 1971, ch 743, § 104.3 Generally, words of common usage should be given their plain, natural, and ordinary meaning. PGE v. Bureau of Labor and Industries, 317 Or 606, 611, 859 P2d 1143 (1993). When “interpreting the words of a statute enacted many years ago, we may seek guidance from dictionaries that were in use at the time.” State v. Perry, 336 Or 49, 53, 77 P3d 313 (2003).

[672]*672As relevant to this case, the term “unconscious” can be defined as “not marked by conscious thought, sensation, or feeling” or “having no consciousness for the time being.” Webster’s Third New Int’l Dictionary 2486 (unabridged ed 1971); see State v. Oliver, 221 Or App 233, 237-38, 189 P3d 1240, rev den, 345 Or 318 (2008) (relevant dictionary definition is the one that “seems most relevant to the use of the word in the statute”). In turn, the term “conscious” can be defined as “mentally active : fully possessed of one’s mental faculties : having emerged from sleep, faint, or stupor : AWAKE.” Webster’s at 482 (emphasis added). The term “consciousness” can be defined as “the state or activity that is characterized by sensation, emotion, volition, or thought : mind in the broadest possible sense,” or “waking life (as that to which one returns after sleep, trance, fever) wherein all one’s mental powers have returned.” Id. (emphasis added).

According to defendant, a person who is unconscious is “not aware” and is instead in a state defined by a lack of “conscious thought, sensation, or feeling.” He asserts that an unconscious person “might not be able to wake up during an act to communicate unwillingness to another person”— in contrast to a sleeping person who is “merely inactive or dormant, and not necessarily in a state from which she is unable to awake and indicate unwillingness to engage in particular behavior.” Defendant then concludes that “someone who is asleep is not in the same state as someone who is lacking conscious thought and feeling.” Thus, defendant seems to distinguish the states of unconsciousness and sleep based on whether a person is able to wake up.

We are not persuaded by the distinction that defendant proposes. Contrary to defendant’s assertions, the plain meaning of the word “unconscious” does not refer to whether a person is able to wake up; the definition refers to a lack of “conscious thought, sensation, or feeling,” and having “no consciousness for the time being.” Webster’s at 2486. Regardless of whether a sleeping person has the ability to wake up, that person does not have “conscious” thought, sensation, or feeling until he or she in fact wakes up — that is, a sleeping person is not “mentally active” or “fully possessed of one’s mental faculties” until he or she has “emerged from [673]*673sleep.” Id. at 482. Likewise, a sleeping person has no “consciousness” — that is, the person is not in a state “characterized by sensation, emotion, volition, or thought” — until he or she returns to “waking life * * * wherein all one’s mental powers have returned.” Id. Thus, based on the plain text of the statute, a person who is asleep is “unconscious” under ORS 163.305(5) and, therefore, “physically helpless” for purposes of ORS 163.427(1)(a)(C).

That understanding of the term “physically helpless” is consistent with relevant legislative history.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Genaro-Lopez v. Cain
327 Or. App. 106 (Court of Appeals of Oregon, 2023)
State v. Lugo
520 P.3d 917 (Court of Appeals of Oregon, 2022)
State v. Moreno
366 P.3d 839 (Court of Appeals of Oregon, 2016)
State v. Tindall-Martin
336 P.3d 518 (Court of Appeals of Oregon, 2014)

Cite This Page — Counsel Stack

Bluebook (online)
329 P.3d 781, 263 Or. App. 669, 2014 WL 2769176, 2014 Ore. App. LEXIS 807, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-marker-orctapp-2014.