Submitted: August 28, 2013.
Yamhill County Circuit Court. CR110048DV. Carroll J. Tichenor, Judge.
Peter Gartlan, Chief Defender, and Erica Herb, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.
[261 Or.App. 122] HASELTON, C. J.
Defendant appeals, following a jury trial, challenging his convictions for rape in the first degree, ORS 163.375 (Count 1), and sexual abuse in the first degree, ORS 163.427 (Count 2). Defendant assigns error to the trial court's failure to instruct the jury that, to find defendant guilty, it must first find that defendant acted with a culpable mental state with respect to the element of " forcible compulsion." For the reasons explained below, we conclude that the trial court so erred. Accordingly, we reverse and remand with respect to Counts 1 and 2.
At trial, the complainant, A, and defendant testified to drastically different versions of the encounter that precipitated the charges in this case. Because those differences are material to our consideration of whether to
exercise our discretion to correct the purported instructional error, we describe that conflicting testimony here.
At the time of the events underlying defendant's convictions, defendant and A were living together as a married couple. A testified that, in the early morning of January 17, 2011, she awoke in bed when defendant pressed his erect penis against her anus. At that point, she moved away from him. According to A, defendant then pulled her closer and she felt his penis deeper in her anus, at which point she said, " What are you doing? Stop." A testified that defendant then pulled her shoulder toward him and said, " If you're not going to give it to me, I am going to take it." Defendant pushed A onto her back. He then got on top of her, put his hands around her neck, and engaged in sexual intercourse with her. During that time, A told him " no" and was crying. A also testified that she and defendant had experimented in their sexual relationship, and that anal sex, hair pulling, and defendant putting his hands on her neck had previously been accepted sexual behavior in their relationship.
[261 Or.App. 123] For his part, defendant testified that, on the evening of January 16, 2011, he and A had been awake watching a movie when she initiated sex by touching his penis and pulling him on top of her. According to defendant, they engaged in consensual sexual intercourse both in the missionary position and with defendant behind A. Defendant explained that, when he was behind A, he had put his hands on her back, but that when he was on top of A, he had not put his hands on her throat and, in fact, he had to hold himself up or he would crush her due to his large size. Defendant explained that, in his opinion, the red marks on A's throat were a symptom of anger or anxiety, in that A is fair-skinned and, " when she gets real mad, * * * [s]he starts getting splotchy on her neck." Defendant testified that A did not tell him " no" that night, and that he did not attempt to engage in anal sex with A.
A spoke with a local law enforcement officer about the above-described encounter. The officer took photographs of A's neck, which displayed red blotches on the front of her throat. The state subsequently charged defendant with rape in the first degree (Count 1), ORS 163.375; sexual abuse in the first degree (Count 2), ORS 163.427; sexual abuse in the second degree (Count 3), ORS 163.425; sexual abuse in the first degree (Count 4), ORS 163.427; attempted sodomy in the first degree (Count 5), ORS 163.405; attempted sexual abuse in the second degree (Count 6), ORS 163.425; strangulation (Count 7), ORS 163.187; assault in the fourth degree constituting domestic violence (Count 8), ORS 163.160; and coercion (Count 9), ORS 163.275. With respect to Count 1 and Count 2, the state alleged in the indictment that defendant " did unlawfully and knowingly, by means of forcible compulsion, engage in ...