Argued and Submitted December 6, 2013
[Copyrighted Material Omitted]
Umatilla County Circuit Court No. CV110550, James R. Hargreaves, Senior Judge.
Portion of judgment reversing petitioner's convictions on Counts 7, 8, 9, and 10 reversed; otherwise affirmed.
Karla H. Ferrall, Assistant Attorney General, argued the cause for appellant. With her on the brief were Mary H. Williams, Deputy Attorney General, and Anna M. Joyce, Solicitor General.
Jessie Wm. Barton argued the cause and filed the brief for respondent.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.[*]
[265 Or.App. 302] GARRETT, J.
Petitioner was convicted of several crimes arising from an incident in which he provided alcohol to a 16-year-old girl and, while she was intoxicated, sexually assaulted her. We affirmed petitioner's convictions on direct appeal. Petitioner then sought post-conviction relief on the ground that his trial counsel was inadequate. The post-conviction court accepted the petition and reversed petitioner's judgment of conviction in its entirety. The state appeals, assigning error to that ruling. We affirm in part and reverse in part.
The facts pertinent on appeal are undisputed. In September 2007, the victim, F, was invited by her friend, S, to attend a birthday party for S's father. Petitioner, who is S's uncle, was also at the party. At the time, F was 16 years old; petitioner was 48. After the party, petitioner invited F and S to his home to see his taxidermy collection. When they arrived, petitioner prepared margaritas. F and S each drank at least six margaritas. Petitioner later served other mixed drinks and shots of alcohol. The girls accepted all of the drinks that petitioner gave them, although F poured out some of the shots on the ground because she was worried about having had " severely too much" to drink. After several hours, petitioner began to dance with F. S was alarmed because she realized that F was " very drunk," and S thought that the dancing was inappropriate. By the end of the night, F was slurring her words and having trouble walking. Petitioner called S's parents and told them that, because S and F had been drinking, they were going to stay overnight at his house.
At about 2:00 a.m., F and S decided to go to bed. Petitioner told them that they could sleep in his spare bedroom. Before going there, F went to get a glass of water. As she was returning, petitioner stopped her in the hallway, took her into his bedroom, laid her on his bed, and removed her pants and underwear. F testified that she attempted to stand up but could not because she was " severely intoxicated." She testified that petitioner performed oral sex on her and then attempted to penetrate her vagina with his [265 Or.App. 303] penis. F felt a " sharp shooting pain" that jolted her out of her " extremely drunken state." F ran out of the room screaming for S.
S found F in the hallway and brought her back to the guest bedroom. S retrieved F's pants and underwear and helped her get dressed. F was " crying frantically." S drove them back to S's parents' house. The next day, S's father took S and F to the police station, where they were both interviewed by police. Later, S's mother took S and F to the hospital. F was interviewed by Sexual Assault Nurse Examiner (SANE) Kathy Wade. A SANE is an emergency room nurse who specializes in examining victims of sexual assaults. S was present during the interview. During her examination of F, Wade observed " a small, linear * * * skin tear, that was about a centimeter long * * * between [F's] hymen and her labia minora." Wade attempted to photograph F's injuries, but the camera she was using failed. Instead, Wade drew the location of the injury on a printed diagram of a woman's genital area that was included in a standardized documentation form. On that same form, Wade wrote " small skin tear, non-bleeding, approx 1 cm long."
Petitioner was charged with two counts of rape in the first degree, ORS 163.375 (Counts 1 and 2); two counts of sodomy in the first degree, ORS 163.405 (Counts 3 and 4); two counts of sexual abuse in the first degree, ORS 163.427 (Counts 5 and 6); two counts of sexual abuse in the second degree, ORS 163.425 (Counts 7 and 8); and two counts of furnishing alcohol to a minor, ORS 471.410 (Counts 9 and 10).
As charged in this case, the crimes alleged in Counts 2, 4, and 6 required the state to prove, inter alia, that F was " incapable of consent by reason of mental incapacitation." At the relevant time, " [m]entally incapacitated" was defined in ORS 163.305(4) (2007),
amended by Or. Laws 2009, ch 770, § 1, as follows:
" 'Mentally incapacitated' means that a person is rendered incapable of appraising or controlling the conduct of the person at the time of the alleged offense because of the influence of a controlled or other intoxicating substance administered to the person without the consent of the person [265 Or.App. 304] or because of any other act committed upon the person without the consent of the person." 
(Emphasis added.) The state's theory at trial was that, at the time of the sexual contact, F was mentally incapacitated because petitioner " administered" alcohol to her without her " consent" ; that is, although F had voluntarily consumed the drinks, her age made her legally unable to consent to drink alcohol. Consistently with that theory, the state argued during its opening statement that
" [F] was mentally incapacitated as a result of the alcohol * * * that the [petitioner] administered to her, essentially. And that--so this mental incapacitation, it means something maybe a little bit different than what we would think of in layperson's terms. The actual definition is that a person becomes mentally incapacitated as a result of any intoxicating substance, drugs or alcohol, administered to them without their consent.
" And while [F] might have agreed to take some of these drinks, she cannot legally consent to do that in this situation."
At trial, Wade testified for the state about her examination of F. She testified that a tear of the skin like what she found on F is " usually caused by a blunt force trauma." Wade also testified that her observations during her examination of F were consistent with the account that F gave during the interview at the hospital. In particular, she explained that similar skin tears can be caused by the penetration of the vagina by a penis. On cross-examination by petitioner's trial attorney, Wade acknowledged that the tear could have been caused by something other than sexual penetration. Petitioner's attorney also cross-examined Wade about her protocols for interviewing sexual assault victims, recording their responses, and documenting forensic evidence. He did [265 Or.App. 305] not, however, specifically question Wade about the camera failure or the hospital's protocols for documenting evidence of sexual assault.
In its instructions to the jury, the trial court explained that the charges in Counts 2, 4, and 6 were based on the state's theory that F was unable to " legally consent" to the consumption of alcohol. For example, with respect to Count 2, the court explained:
" In this case, the defendant is charged with * * * Count 2, Rape in the First Degree, that said defendant * * * did unlawfully and knowingly engage in sexual intercourse with [F], a female who was incapable of consent by reason of mental incapacitation caused by the defendant administering alcohol to [F], [F] being unable to legally consent to the consumption of alcohol because she is sixteen years old and a minor."
At a later point during the jury instructions, the court explained what the state was required to prove in order to obtain convictions on Counts 2, 4, and 6. Those explanations tracked the language of the relevant criminal statutes. For example, the court informed the jury that,
" [i]n this case, to establish the crime of Rape in the First Degree, the State must prove beyond a reasonable doubt the following four elements (1) that the act occurred in Deschutes County, Oregon (2) that the act occurred on or about September 8th, 2007 (3) that [defendant] knowingly had sexual intercourse with [F]; and (4) that [F] was incapable of consent by reason of mental incapacitation."
The court further explained to the jury that
" mentally incapacitated means a person is rendered incapable of appraising ...