Argued and Submitted: November 21, 2013.
Lane County Circuit Court. 200815811. Mustafa T. Kasubhai, Judge.
Bear Wilner-Nugent argued the cause and filed the briefs for appellant.
Jamie K. Contreras, Senior Assistant Attorney General, argued the cause for respondent. With her on the briefs were Mary H. Williams, Deputy Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and Garrett, Judge, and Schuman, Senior Judge.[*]
[261 Or.App. 826] Defendant appeals fro a judgment of conviction following a jury trial. The jury convicted defendant on one count of rape in the second degree, ORS 163.365, and two counts of sexual abuse in the first degree, ORS 163.427. That was defendant's second trial on those charges; we reversed and remanded his earlier judgment of conviction because of an error in the jury instructions. State v. Berry, 238 Or.App. 277, 242 P.3d 666 (2010). On appeal, defendant makes six assignments of error, arguing that the trial court incorrectly (1) denied his motion for acquittal on double jeopardy grounds as to the two sexual abuse counts; (2) excluded evidence at the second trial of purportedly inconsistent statements made by the victim in the first trial; (3) declined to instruct the jury on the lesser-included offenses of rape in the third degree and sexual abuse in the third degree; (4) instructed the jury that it could convict defendant with other than a unanimous vote; (5) accepted nonunanimous jury votes as valid guilty verdicts; and (6) imposed an unconstitutionally disproportionate sentence. We reject defendants' arguments and affirm.
The relevant facts and procedural history are undisputed on appeal. Defendant and the victim first met online in 2008 through the " MySpace" social media website. The victim established a MySpace profile in which she asserted that she was 15 years old. She and defendant engaged in correspondence on the MySpace site and later by direct text message. In one communication, the victim told defendant that she was 17 years old. Defendant, who was 20 years old at the time, had a MySpace profile stating that he, too, was also 17 years old.
Defendant and the victim met in person for the first time at a McDonald's restaurant on July 15, 2008. From there, they went to defendant's apartment, where they remained until the next day. During the evening and following morning, the two engaged in repeated nonforcible sexual encounters. They kissed; defendant touched the victim's bare breasts; the victim touched defendant's bare genitals; and they had intercourse once. On July 16, after receiving a [261 Or.App. 827] call from the victim's mother, the police located the victim by tracking defendant's telephone number to his apartments. Defendant was arrested at the scene.
Defendant was charged with five counts of sexual abuse in the first degree, ORS 163.427, and one count of rape in the second degree, ORS 163.365. At trial, the victim and her mother both testified that she was 13 years old at the time that the sexual conduct occurred. The state also introduced a birth certificate to that effect. Defendant introduced evidence that the victim had, at different times, represented her age as being 17 or 15. The prosecution did not object to the introduction of those representations as substantive evidence.
The jury found defendant guilty of the rape count and two of the sexual-abuse counts, acquitting him of the other three sexual-abuse counts. The verdict form did not differentiate among the sexual-abuse counts in any way except by enumerating them separately. ...