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State v. Wier

Court of Appeals of Oregon

December 26, 2013

STATE OF OREGON, Plaintiff-Respondent,
v.
MATHEW LEE WIER, Defendant-Appellant.

Argued and submitted on March 13, 2013.

Lane County Circuit Court 201021014 Jack A. Billings, Judge.

Ryan T. O'Connor, Senior Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Karla H. Ferrall, Assistant Attorney General, argued the cause for respondent. With her on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.

Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.

DUNCAN, J.

In this criminal case, defendant appeals a judgment convicting him of first-degree sexual abuse, ORS 163.427(1)(a)(B), third-degree sexual abuse, ORS 163.415(1)(a)(A), and first-degree burglary, ORS 164.225. Defendant raises six assignments of error. We write only to address the second and third assignments of error, which concern jury instructions that defendant requested on the first- and third-degree sexual abuse counts.[1] We agree with defendant that, as to the first-degree sexual abuse charge, the trial court erred in declining to provide the jury with defendant's special instruction regarding the culpable mental state required for the element of forcible compulsion. However, we conclude that, as to the third-degree sexual abuse charge, the trial court did not err in declining to provide the jury with defendant's special instruction regarding the culpable mental state required for the lack of consent element. Accordingly, we reverse and remand defendant's conviction for first-degree sexual abuse, remand for resentencing, and otherwise affirm.

Defendant was charged by indictment with one count each of first-degree sexual abuse, third-degree sexual abuse, and first-degree burglary. In the count of first-degree sexual abuse, the indictment alleged, as relevant here, that defendant "did unlawfully and knowingly, by means of forcible compulsion, subject [the first victim] to sexual contact * * *." In the count of third-degree sexual abuse, it alleged, as relevant here, that defendant "did unlawfully and knowingly subject [the second victim] to sexual contact, * * * said [second victim] not consenting thereto."

The case was tried to a jury. As to the count of first-degree sexual abuse, defendant requested the court to instruct the jury as follows:

"Oregon law provides that a person commits the crime of sexual abuse in the first degree if the person knowingly subjects another person to sexual contact and the victim is subjected to forcible compulsion by the actor and if the person knows that his actions amount to forcible compulsion.
"In this case, to establish the crime of sexual abuse in the first degree, the state must prove beyond a reasonable doubt the following five elements:
"* * * * *
"3. [Defendant] knowingly subjected [the first victim] to sexual contact;
"4. [The first victim] was subjected to forcible compulsion by [defendant]; and
"5. [Defendant] knew that his actions amounted to forcible compulsion."

(Emphases added.) In closing argument, defense counsel contended that defendant did not know that his conduct constituted forcible compulsion.

As to the count of third-degree sexual abuse, defendant requested the court to instruct the jury as follows:

"Oregon law provides that a person commits the crime of sexual abuse in the third degree if the person knowingly subjects another person to sexual contact and the victim does not consent to the sexual contact and if the person knows that the victim does not consent to the sexual contact.

"In this case, to establish the crime of sexual abuse in the third degree, the state must prove beyond a reasonable doubt ...


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