Submitted March 25, 2014,
Benton County Circuit Court. DV1121520. Locke A. Williams, Judge.
Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, filed the brief for respondent.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[263 Or.App. 670] TOOKEY, J.
Defendant appeals a judgment of conviction for sexual abuse in the first degree, ORS 163.427, arguing that the trial court erred when it denied his motion for judgment of acquittal. A person commits sexual abuse in the first degree when that person " [s]ubjects another person to sexual contact and * * * [t]he victim is incapable of consent by reason of being * * * physically helpless[.]" ORS 163.427(1)(a)(C). A person is " physically helpless" if that person " is unconscious or for any other reason is physically unable to communicate unwillingness to an act." ORS 163.305(5). The issue in this case is whether a victim who is asleep when the sexual abuse occurs is incapable of consent by reason of being " physically helpless." We answer that question in the affirmative and, accordingly, affirm.
In reviewing a trial court's order denying a motion for judgment of acquittal, we " view the evidence in the light most favorable to the state to determine whether a rational factfinder could have found the elements of the crimes in question beyond a reasonable doubt." State v. Reed, 339 Ore. 239, 243, 118 P.3d 791 (2005). In this case, the relevant facts are undisputed. Defendant and the victim were roommates who, while living together, had a romantic relationship for approximately one month. Soon after the relationship ended, the victim awoke during the night and felt defendant's " hand in [her] pants in [her] vagina playing with it." She told defendant to " get out," and he left the room. Defendant was charged with first-degree sexual abuse and attempted unlawful sexual penetration in the first degree, ORS 163.411.
At trial, after the state presented its case-in-chief, defendant moved for a judgment of acquittal, asserting that the victim was not physically helpless for purposes of ORS 163.427(1)(a)(C) because, although she was asleep, she was not " unconscious" or otherwise " physically unable to communicate willingness [ sic ] to an act." The trial court denied defendant's motion, concluding that the state had presented [263 Or.App. 671] sufficient evidence that " the victim was asleep at the time that the crime was committed and that that would constitute being physically unable to communicate willingness[.]" A jury found defendant guilty of sexual abuse in the first degree.
The question on appeal is whether a sleeping victim is " physically helpless" for purposes of ORS 163.427(1)(a)(C). As noted, ORS 163.305(5) defines " physically helpless" as " unconscious or for any other reason * * * physically unable to communicate unwillingness to an act." Thus, we consider whether sleep renders a person either " unconscious" or " for any other reason * * * physically unable to communicate unwillingness to an act."  When construing a statute, our goal is to discern the legislature's intent by examining the text and context of the statute, and the legislative history, if useful. State v. Gaines, 346 Ore. 160, 171-72, 206 P.3d 1042 (2009).
We begin with the text and context of ORS 163.305(5), which was enacted in 1971. Ore. Laws 1971, ch 743, § 104. Generally, words of common usage should be given their plain, natural, and ordinary meaning. PGE v. Bureau of Labor and Industries, 317 Ore. 606, 611, 859 P.2d 1143 (1993). When " interpreting the words of a statute enacted many years ago, we may seek guidance from dictionaries that were in use at the time." State v. Perry, 336 Ore. 49, 53, 77 P.3d 313 (2003).
[263 Or.App. 672] As relevant to this case, the term " unconscious" can be defined as " not marked by conscious thought, sensation, or feeling" or " having no consciousness for the time being." Webster's Third New Int'l Dictionary 2486 (unabridged ed 1971); see State v. Oliver, 221 Ore. App 233, 237-38, 189 P.3d 1240, rev den, 345 Ore. 318, 195 P.3d 65 (2008) (relevant dictionary definition is the one that " seems most relevant to the use of the word in the statute" ). In turn, the term " conscious" can be defined as " mentally active : fully possessed of one's mental faculties :having emerged from sleep, faint, or stupor : as " the state or activity that is characterized by sensation, emotion, volition, or thought : mind in the broadest possible sense," or " waking life ( as ...