Submitted on April 25, 2013.
Douglas County Circuit Court, No. 09CR1355FE George William Ambrosini, Judge.
Peter Gartlan, Chief Defender, and Susan F. Drake, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Susan G. Howe, Senior Assistant Attorney General, filed the brief for respondent.
Before Schuman, Presiding Judge, and Duncan, Judge, and Nakamoto, Judge.
SCHUMAN, P. J.
Defendant was charged with sexual abuse in the first degree, ORS 163.427. The indictment specified that he subjected S. W., "a person who was physically helpless, to sexual contact by touching her vagina, a sexual or intimate part." He was convicted after a jury trial. On appeal, he assigns error to the trial court's denial of his motion for a judgment of acquittal (MJOA), arguing that, while evidence supports the inference that he removed a tampon from S. W. while she was unconscious, there is no evidence that, in doing so, he touched her vagina. He also assigns error to the court's instruction to the jury that it could find him guilty if he subjected S. W. to "sexual contact"; according to defendant, that instruction allowed the jury to convict him for conduct that was not alleged in the indictment, because the indictment specified that he touched S. W.'s vagina, whereas the instruction would allow the jury to convict him for touching some other intimate part of her body. We conclude that the court did not err in denying defendant's MJOA. We also conclude that, although the court's jury instruction was error, it was not prejudicial. We therefore affirm.
The following facts are not in dispute on appeal. S. W. and her boyfriend invited a group of friends, including defendant, to their apartment for a party. The hosts and guests spent the evening enjoying the patio, playing video games, and drinking vodka. Toward the end of the night, several of the guests, having had too much to drink, passed out. S. W., who describes herself as a "clean freak, " stayed awake to clean the apartment. Another guest, Tidmarsh, also stayed awake to help her.
As they were cleaning the kitchen, defendant walked into the room and asked S. W. if they could talk. S. W. left Tidmarsh in the kitchen and followed defendant into the bathroom. Once in the bathroom, defendant told S. W. that he was feeling sick. Believing that defendant was so drunk that he was about to vomit, S. W. started to leave the bathroom. As soon as her back was turned, defendant grabbed her around the neck, making it impossible for her to breathe. The next thing that S. W. remembered was waking up naked on the bathroom floor.
Before S. W. passed out, she called out to Tidmarsh, who immediately knew that something was wrong. He pounded on the locked bathroom door, but defendant refused to open it, saying, "I'll be out in a minute." Tidmarsh then broke into the bathroom and saw defendant choking S. W., who was completely naked. Defendant was fully clothed. Tidmarsh hit defendant on the head but could not make him release his grip. Tidmarsh then left the bathroom and woke up S. W.'s boyfriend.
At that point, defendant left the bathroom, passing Tidmarsh and the boyfriend on his way out. Defendant told them, "I'm drunk, " and he collapsed on the floor. The boyfriend revived S. W., brought her into the bedroom, and helped her get dressed. Meanwhile, Tidmarsh attempted to wake defendant by kicking him, but was unsuccessful. The boyfriend and Tidmarsh dragged defendant out of the house while S. W. called 9-1-1.
When police arrived, defendant was unconscious in front of the apartment building. Police entered the apartment and began collecting evidence. They found a used tampon in the garbage can next to the toilet. Before being transported to the hospital, S. W. told police that she had placed the tampon in the garbage and inserted a new one. Once at the hospital, she told police that she "did not think anything had happened" and declined a rape examination. Later that evening, however, she realized that there was no tampon in place. She concluded that it was defendant who had removed her tampon. She subsequently returned to the hospital for a rape examination. That examination did not find any DNA belonging to defendant.
A grand jury indicted defendant on six counts, including sexual abuse in the first degree. With respect to that charge, the indictment accused defendant of "unlawfully and knowingly subjecting [S. W.], a person who was physically helpless, to sexual contact by touching her vagina, a sexual or intimate part of [S. W.]." (Emphasis added.) At trial, defendant moved for a judgment of acquittal on the theory that the state had presented no evidence that he touched S. W.'s vagina; the only evidence was that he had removed a tampon from her while she was unconscious. The court denied the motion. After closing arguments, defendant objected to the court's jury instructions regarding sexual abuse in the first degree, which provides:
"Oregon law provides that a person commits the crime of sexual abuse in the first degree when the person knowingly subjects another person to sexual contact when the victim is incapable of consent by reason of being physically helpless. In this case to establish the crime of sexual abuse in the first degree the state must prove beyond a reasonable doubt the following * * * elements. One, the act occurred in Douglas County, Oregon. Two, the act occurred on or about February 21st, 2009. Three, [defendant] ...