Submitted July 31, 2013.
Linn County Circuit Court. 10040604. Daniel R. Murphy, Judge.
Peter Gartlan, Chief Defender, and Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Tim Wayne Fox filed the supplemental brief Pro se.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.
[262 Or.App. 475] SCHUMAN, S. J.
Defendant appeals two of his convictions for sex crimes he committed while he was a recruiter for the Oregon Army National Guard. One of his convictions was for attempted first-degree sexual abuse under ORS 163.427(1)(a)(B), which applies only when the perpetrator uses " forcible compulsion." On appeal, defendant argues that, on the undisputed facts, the state did not prove that element. Another conviction was for coercion under ORS 163.275(1)(g), which applies only when a " public servant" unlawfully coerces a victim. Defendant contends that, as used in that statute, the term " public
servant" means only a public servant who works for the state or a local governmental unit, and there is no evidence that the Oregon Army National Guard is such an entity. He also argues that, if he was a public servant, then the court erred in enhancing his sentence on the basis of the " violation of public trust" factor, OAR 213-008-0002(1)(b)(F), because that enhancement factor was already captured by the " public servant" element of the coercion crime. We conclude that the state presented evidence sufficient to establish that defendant attempted to use forcible compulsion; that he was a public servant for purposes of the coercion statute; and that, although the court erred in applying the " violation of public trust" enhancement factor, that error was harmless, because defendant was also sentenced to a concurrent term for a conviction that he does not appeal. We therefore affirm.
The facts, which we relate in the light most favorable to the state because a jury returned guilty verdicts, State v. Johnson, 342 Ore 596, 598, 157 P.3d 198 (2007), cert den, 552 U.S. 1113, 128 S.Ct. 906, 169 L.Ed.2d 753 (2008), are as follows. R encountered defendant in 2010 when she was applying to join the Oregon Army National Guard and met with defendant several times to fill out paperwork. During one of those meetings, defendant asked R about her sexual history. Although the questions made her uncomfortable, R answered them because [262 Or.App. 476] she believed that they were part of a standard recruitment questionnaire. Defendant then asked R if she would like a National Guard t-shirt. She said that she would, and defendant led her into a storage room. Once they were alone, defendant put his leg up on a box, motioned towards his genitals, and asked R how " adventurous" she was. She then tried to leave the room, but defendant stepped in front of her. Defendant then exposed himself, grabbed R's arm " very aggressively," and attempted to make her touch his penis. R was able to break his grip and leave the storage room.
Defendant caught up to R in the drill hall and again blocked her exit. He told her that she could not leave unless she showed him her breasts. At that point, R became " frightened." She lifted her shirt and defendant grabbed her breasts. R then pulled her shirt back down and began to walk away, intending to leave the building. Defendant, however, told her that she needed to sign more papers. She followed defendant back to his office and finished signing the papers. While she was in his office, defendant closed the door and again asked R to show him her breasts. R did so and then left the office. R's arm developed bruises where defendant had grabbed her.
R discussed what had happened with a friend but did not immediately report defendant because she was concerned that doing so might affect her chances of joining the guard. R returned to the armory every day for the rest of the week to work out in the gym and to fill out more paperwork, but she always brought friends because she was afraid of defendant. Nevertheless, at one point, R had to go into defendant's office to fill out documents related to her " family care plan." When they were alone, defendant again asked to see R's breasts. R declined and left the room. The day after that incident, R reported it to the Linn County Sheriff's Office, and defendant was subsequently arrested.
After a jury trial, defendant was convicted of, among other offenses, one count of attempted first-degree sexual abuse, ORS 163.427(1)(a)(B), and one count of coercion, ORS 163.275(1)(g). On appeal, defendant assigns error [262 Or.App. 477] to five rulings, three of which merit discussion. First, defendant assigns
error to the denial of his motion for judgment of acquittal (MJOA) on the charge of first-degree attempted sexual abuse, arguing that the state failed to establish that his action involved forcible compulsion. Second, he argues that the trial court erred by denying his MJOA on the charge of coercion by a public servant. According to defendant, a " public servant" is a person who works for the state or for a local governmental entity. Third, defendant argues that the trial court erred by imposing an upward departure sentence for his conviction of coercion by a public servant because the factor that the court used for the enhancement was also an element of the underlying crime. We address those arguments in turn.
A. Forcible compulsion
Defendant was convicted of attempted first-degree sexual abuse on the theory that he tried " to cause [R] to touch defendant's penis by means of forcible compulsion[.]"  On appeal, he argues that the court erred in denying his MJOA on that ...