State v. Marshall

227 P.3d 786, 234 Or. App. 159, 2010 Ore. App. LEXIS 195

• Court: Court of Appeals of Oregon
• Decided: March 3, 2010
• Docket: CR060570; A135603
• Status: Published

Opinions

ORTEGA, J.

Defendant appeals from a judgment of conviction for two counts of first-degree sexual abuse, ORS 163.427, and one count of coercion, ORS 163.275. He assigns error to the trial court’s denial of his motion for a judgment of acquittal on the sexual abuse counts, contending that the state failed to prove the “forcible compulsion” element of those counts.¹ We review the denial of a motion for a judgment of acquittal to determine whether, viewing the evidence in the light most favorable to the state, a rational trier of fact could have found the essential elements of the crime proved beyond a reasonable doubt. State v. Hall, 327 Or 568, 570, 966 P2d 208 (1998). We affirm.

In the light most favorable to the state, these are the facts, taken from the victim’s testimony and from others’ testimony about her description of the events in the days immediately after they occurred. At the time of the charged acts, the victim was 14 years old. Defendant, a 27-year-old friend of the victim’s mother, was living in the victim’s family’s home.

One Saturday morning, the victim was asleep in her bedroom in a bed that was pushed up against a wall. She was wearing a t-shirt and sweatpants. She awoke with defendant “on top of her trying to kiss her, and get her to do things, sexual things” and “she just kept telling him no, trying to push him away.” Defendant had never done anything like that before, and the victim “was wondering what he was doing” and felt “[a] little bit” scared. Defendant positioned himself on the side of the bed away from the wall, so that the victim was between him and the wall.²

After rubbing her back on the outside of her shirt, defendant took hold of the victim’s hand, placing it between them. Defendant “asked her about her last boyfriend, and asked her if she ever had sex with him.” The victim told defendant “that she hadn’t had a boyfriend, and he asked her if she wanted — she wanted him to help her get over her fears * * *.” ghe told him no. Despite her answer, defendant “grabbed her hand and forced it down his pants,” making her feel his erect penis.

The victim said no again, pulled her hand away, rolled over on her stomach, and turned her head away from defendant. He remained in her bed, however, and began rubbing her back again, this time under her shirt, focusing on the area from the middle to lower back. He then reached under her pants and touched her buttocks. After a few seconds, the victim “told him no, and kind of scooted over towards the wall,” and defendant removed his hand.

Defendant told the victim five or six times that she could not tell anyone about the incident and that, if she did, he would hurt someone close to her. After about 10 minutes, defendant got out of the victim’s bed and left her room.

The victim did not want defendant in her bed. She would not have put her hand down defendant’s pants of her own volition, nor did she want to have defendant’s hand down her pants.

Defendant was charged with first-degree sexual abuse as to both incidents — (1) causing the victim to touch his penis and (2) touching the victim’s buttocks. As pertinent here, ORS 163.427(1) provides:

“A person commits the crime of sexual abuse in the first degree when that person:

“(a) Subjects another person to sexual contact and:

«Hi * Hs * *

“(B) The victim is subjected to forcible compulsion by the actor[.]”³

ORS 163.305(2) defines “forcible compulsion” as follows:

“ ‘Forcible compulsion’ means to compel by:

“(a) Physical force; or

“(b) A threat, express or implied, that places a person in fear of immediate or future death or physical injury to self or another person, or in fear that the person or another person will immediately or in the future be kidnapped.”

Defendant contends that there is insufficient evidence of physical force as to both counts. In his view, although the statute does not require that the victim must resist the offender, in order “to commit sex abuse in the first degree by forcible compulsion involving physical force, an offender must apply strength or energy to the victim’s body that overcomes the victim’s unwillingness or resistance to engage in sexual contact.” He contends that there was no evidence that would allow a rational trier of fact to find that defendant used physical force to overcome any resistance or unwillingness to engage in the sexual contacts.

The state responds that defendant’s argument implicitly assumes that the victim must resist in some way, but the legislature expressly removed the requirement of resistance from the definition of “forcible compulsion.” The state argues that “forcible compulsion by means of physical force occurs when a person obtains a response by using strength or power of any degree, without justification or contrary to law.” In the state’s view, the evidence was sufficient for the jury to find that defendant used forcible compulsion.

This case presents a question of statutory interpretation. To discern legislative intent, we begin by examining the statutory text and context and, if it appears useful to the analysis, any legislative history offered by the parties. State v. Gaines, 346 Or 160, 171-72, 206 P3d 1042 (2009). Because ORS 163.427(1) requires both “sexual contact” and “forcible compulsion,” the element of “forcible compulsion” is distinct from the element of “sexual contact” — that is, “forcible compulsion” means something more than a physical touch to which the victim does not consent. Here, the presence of “forcible compulsion” also separates the crimes of first-degree and third-degree sexual abuse. ORS 163.427(1); ORS 163.415(1). We conclude that, under the plain meaning of ORS 163.427 and ORS 163.305, physical force constitutes forcible compulsion if it is sufficient to compel the victim to engage in or submit to sexual contact.

Both “compel” and “compulsion” communicate a sense that a person is forced to do or to submit to something against her will. The noun “compulsion” commonly means:

“1 a : an act of compelling : a driving by force, power, pressure, or necessity * * * <acting under ~, not on his own free will> b : a force or agency that compels * * * c : a condition marked by compelling, by forced action or assent <peonage is service to a private master at which a man is kept by bodily ~ against his will * * *>.”

Webster’s Third New Int’l Dictionary 468 (unabridged ed 2002). The related verb “compel” means:

“1: FORCE, DRIVE, impel: as a: to force by physical necessity or evidential fact * * * 2 a: to force or cause irresistibly: call upon, require, or command without possibility of withholding or denying * * * 3 a: to domineer over so as to force compliance or submission : demand consideration or attention <nobody will ~ you; you are perfectly free * * *> b: to obtain (a response) by force, violence, or coercion <~ assent at the point of a gun>.”

Id. at 463.

That sense is consistent with the idea of compulsion by “physical force.” “Physical” commonly means “of or relating to natural or material things as opposed to things mental, moral, spiritual, or imaginary: material, natural * * * of or relating to the body <~ strength> — often opposed to mental.” Id. at 1706. The common meaning of the term “force” includes:

“1 a : strength or energy esp. of an exceptional degree : active power: VIGOR * * * c: power to affect in physical relations or conditions <the ~ of the blow was somewhat spent when it reached him> <the rising ~ of the wind> * * * 3 a : power, violence, compulsion, or constraint exerted upon or against a person or thing * * * b : strength or power of any degree that is exercised without justification or contrary to law upon a person or thing c : violence or such threat or display of physical aggression toward a person as reasonably inspires fear of pain, bodily harm, or death.”

Id. at 887. Thus, “physical force” commonly refers to a material or bodily strength or power that is exerted against a person.

The word “force” is close in meaning to the word “compulsion.” A usage note lists as synonyms for the noun “force” the words “violence, compulsion, coercion, duress, constraint, restraint” and goes on to explain that

“force is a general term for exercise of strength or power, esp. physical, to overcome resistance <there is the force used by parents when . . . they compel their children to act or refrain from acting in some particular way. There is the force used by attendants in an asylum when they try to prevent a maniac from hurting himself or others. There is the force used by the police when they control a crowd ... there is the force used in war — Aldous Huxley> * * * COMPULSION is applicable to any power or agency that compels, that makes an individual follow a will not his own compulsion exists where a being is inevitably determined by an external cause — Frank Thilly> <masterpieces I read under compulsion without the faintest interest — Bertrand Russelb.”

Id. (italics in original; underscoring added).

Although “force” is commonly used to refer to an exercise of strength or power to overcome some sort of resistance, the legislature chose to separate the idea of compulsion from the requirement of resistance. It eliminated an older statutory requirement of force “that overcomes earnest resistance” and added the phrase “to compel by” to the definition of “forcible compulsion.” Or Laws 1999, ch 949, § 1. Dale Penn, testifying on behalf of the Oregon District Attorneys Association in support of the amendment, cautioned against making further amendments that would place a burden on the victim to resist. Audio Recording, Senate Committee on Judiciary, SB 944, Apr 26, 1999, at 1:24:40, http://www.leg.state.or.us/listn/ (statement of Dale Penn) (accessed Feb 24,2010). Under the plain meanings of the pertinent words in the context of that legislative choice, to compel a person by “physical force” means to exercise physical strength or power that causes the person to act or to submit to being acted upon against the person’s will.⁴ Victim resistance is not required.

The level of physical force that is sufficient to cause a victim to engage in sexual contact against the victim’s will depends on the circumstances of the offense, including the characteristics of the assailant and the victim and the relationship between them; the assailant’s conduct leading to the offense; and the time and location of the offense. The level of force that is sufficient to overcome the victim’s will is lower in some circumstances than in others.

The more mechanical test proposed by the dissent finds no support in the statutory text. The formulation that “physical facilitation” includes situations “where the victim could not avoid the sexual contact because of the application of force,” 234 Or App at 172 (Sercombe, J., dissenting), implicitly imposes the very resistance element that the legislature abolished. And the interpretation that the statute requires “a distinct application of physical force on the victim that allows the sexual contact to occur,” id. at 169 (Sercombe, J., dissenting), does not account for the plain meaning of compulsion. The statute does not require that the physical force make the sexual contact “likely,” id. at 172 (Sercombe, J., dissenting), nor does it require a measurement of physical force in mathematical terms. Rather, the statute requires that the victim was subjected to forcible compulsion. Compulsion means that the victim was made to follow a will not her own, and the physical force in a particular case must be sufficient to compel the victim. To assess the effect of physical force on the victim — that is, to determine whether, in a particular case, the victim was compelled by physical force — a jury may consider the circumstances surrounding the offense. An interpretation that treats physical force as an abstract, mechanical concept is inconsistent with the statutory text and shifts the focus away from the question of compulsion to inquiries such as whether the defendant “could just as easily have touched the victim’s buttocks” with or without some other physical acts, id. at 173 (Sercombe, J., dissenting).

Here, considering the totality of the circumstances, a jury could find that defendant subjected the victim to “forcible compulsion,” compelling her by physical force to submit to both incidents of sexual contact. The incidents happened within a relatively short period of time, during which the victim was frightened and confused. As to the first incident, in which defendant caused the victim to touch his penis, the jury could find that defendant used physical power to control the victim’s movements and ultimately to force her hand down his pants. Initially, he was “on top of her” and was “trying to kiss her on the face,” while she “kept telling him no, trying to push him away.” Defendant finally “grabbed her hand and forced it down his pants.” From that testimony, a jury could find that defendant used physical strength to restrain the victim and then to move her hand into his pants against her will. Accordingly, the first incident constituted first-degree sexual abuse.

As to the second incident, in which defendant touched the victim’s buttocks, a jury could find that defendant continued to use physical power to compel the victim. Although the two incidents were separate for purposes of charging defendant with multiple offenses, defendant’s conduct in the first incident is part of the totality of the circumstances that the jury could consider in determining whether defendant compelled the victim to submit to the second incident by physical force.⁵ Accordingly, we need not — and therefore do not — decide whether defendant’s conduct following the first instance of sexual contact would, by itself, be sufficient to support a conviction for first-degree sexual abuse.

Considering the totality of the circumstances, the second incident began with defendant, an adult and a friend of the victim’s mother, on top of the victim, a 14-year-old girl, attempting to engage her in sexual contact. When she resisted, he backed off to a degree, but persisted in touching her (rubbing her back) and attempting to persuade her to engage in sexual activity with him. He then returned to more active efforts, forcing her hand down his pants and making her touch his erect penis. Her unwillingness to engage in sexual contact did not deter him.

When the victim pulled her hand away and rolled over onto her stomach, defendant continued his pursuit of sexual contact with her. Although defendant may not have exerted a great deal of physical strength beyond what he had already exerted, the jury could reasonably find that, in context, his conduct — trapping the victim between himself and the wall, forcing her to touch his erect penis, putting his hand on her lower back and rubbing it beneath her shirt, and then reaching under the waistband of her pants — constituted sufficient physical force to qualify as forcible compulsion within the meaning of the statute.

Affirmed.

1 Defendant also assigns error to the imposition of consecutive sentences. His arguments on that assignment are disposed of by Oregon v. Ice, 555 US_, 129 S Ct 711, 172 L Ed 2d 517 (2009).

2 There is conflicting evidence in the record as to which side of the bed defendant was on. The jury was entitled to credit the evidence indicating that he was on the side away from the wall.

3 “Sexual contact” refers to “any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party.” ORS 163.305(6).

4 We do not hold or imply, as the dissent contends, 234 Or App at 169 (Sercomhe, J., dissenting), that “any predicate and untoward touching of the victim” is sufficient to make out a case of first-degree sexual abuse, nor do we “equate[ ] any intimidating conduct with ‘forcible compulsion,’ ” id. at 170, or focus on whether the victim felt “oppressed]” or “intimidated,” id. at 174, 176. Physical strength or power constitutes forcible compulsion only when it causes the victim to act or submit to being acted on against her will. Accordingly, the examples such as the “shaking of hands” or voluntary kissing suggested by the dissent, id. at 173, 175, are unlikely to meet that standard.

5 The dissent contends that considering the totality of the circumstances raises concerns about merger under ORS 161.067(3) (providing that, when a criminal episode involves repeated violations of the same statutory provision against the same victim, each violation “must be separated from other such violations by a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent” to be separately punishable). 234 Or App at 175 (Sercombe, J., dissenting).

In this case, defendant has not argued that separate judgments of conviction could not be entered as to each incident of sexual contact. As a factual matter, there was a pause — which began when the victim said no, pulled her hand away, and rolled away from defendant — between the two instances of sexual contact.

As a matter of statutory interpretation, the dissent’s interpretation imposes a simultaneity requirement — that is, that the victim must be subjected to an instance of physical force at the same time as each sexual contact — that is unsupported by the statutory text. The statute requires only that the victim be compelled by physical force. A single act may compel a victim to submit to multiple sexual contacts. For example, if a defendant bound a victim and then engaged in multiple nonconsensual sexual contacts, it would seem beyond dispute that the victim had been subjected to ongoing forcible compulsion in each incident of sexual contact. If a defendant struck a victim and the victim submitted to multiple sexual contacts to avoid being struck again, a jury could conclude that, with a single blow, the defendant compelled the victim to submit to each sexual contact. In such cases, a question may arise as to the sufficiency of the pause between each contact. But our interpretation of ORS 163.427 does not create the merger question; that question arises because of the nature of the merger inquiry under ORS 161.067(3).