Submitted June 17, 2014
Multnomah County Circuit Court 120342710. Kelly Skye, Judge.
Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. On the reply brief were Peter Gartlan, Chief Defender, and Meredith Allen, Senior Deputy Public Defender.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Jeremy C. Rice, Assistant Attorney General, filed the brief for respondent.
Before DeVore, Presiding Judge, and Haselton, Chief Judge, and Garrett, Judge.
[264 Or.App. 460] GARRETT, J.
A jury convicted defendant of one count of sexual abuse in the third degree, ORS 163.415. Defendant approached a stranger on a MAX train in Portland and repeatedly groped her, including her genital area. At trial, defendant requested a special jury instruction, arguing that a " knowing mens rea ought to attach" to the " lack of consent" element of the crime. The trial court declined to give that instruction. On appeal, defendant contends that that was error. In light of State v. Wier, 260 Or.App. 341, 317 P.3d 330 (2013), we disagree and affirm.
A party is generally entitled to have a proposed jury instruction given if the instruction accurately states the applicable law. State v. Barnes, 329 Or. 327, 334, 986 P.2d 1160 (1999). On appeal, defendant argues that his proposed instruction is a correct statement of law because, pursuant to ORS 161.095(2), a " defendant is only guilty of third-degree sexual abuse if a jury finds that he acted with a culpable mental state with respect to the element that the victim does not consent." The state disagrees that any mental state requirement applies to the " does not consent" element. In the alternative, the state argues that, even if some culpable mental state must accompany that element, " knowing" is not the applicable mental state.
After the parties briefed this case, we decided Wier, 260 Or.App. 341. That case also involved a trial court's refusal to give a defendant's requested jury instruction on the elements of third-degree sexual abuse. The defendant's proposed jury instruction included this phrase:
" 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. "
[264 Or.App. 461] Id. at 344 (emphasis in original). We agreed with the defendant that " lack of consent" is an element that relates directly to the evil sought to be prevented by the crime of third-degree sexual abuse and, as such, the state must prove that the defendant acted with a culpable mental state as to that element. Id. at 351-52 (citing State v. Rainoldi, 236 Or.App. 129, 147, 235 P.3d 710 (2010), rev'd on other grounds, 351 Or. 486, 268 P.3d 568 (2011)). We rejected, however, the defendant's argument that the applicable mental state was " knowingly." Id. at 352-53 (concluding that the state was required to prove only " that a defendant acted, at a minimum, with criminal negligence with respect to lack of consent" ). Consequently, we held that " [t]he trial court did not err in declining to provide the jury with defendant's proposed instruction on third-degree sexual abuse because the instruction incorrectly stated that the state had to prove that defendant acted knowingly with respect to the second victim's lack of consent." Id. at 354.
In this case, defendant requested an instruction that the mental state of " knowing" attaches to the " does not consent" element. That is precisely the instruction that we rejected in Wier. Accordingly, it was not error for the trial court to ...