Argued and Submitted September 23, 2014
Deschutes County Circuit Court. 12FE0233. Roger J. DeHoog, Judge.
Neil Francis Byl, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Jennifer S. Lloyd, Attorney-in-Charge, argued the cause for respondent. On the answering brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solictor General, and Shannon T. Reel, Assistant Attorney General. With her on the supplemental answering brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General.
Before Sercombe, Presiding Judge, and Hadlock, Judge, and Tookey, Judge.
[267 Or.App. 517] TOOKEY, J.
Defendant appeals a judgment of conviction for two counts of sexual abuse in the first degree, (Counts 1 and 2), ORS 163.427, raising five assignments of error. We reject without discussion defendant's third and fourth assignments of error. In his first and second assignments of error, defendant argues that the trial court erred in denying his motion for judgment of acquittal on Count 1 and Count 2, respectively, because " [f]orcefully keeping a door closed in an effort to prevent the victim from leaving [the bathroom]
is not 'physical force' within the meaning of ORS 163.305(2), the statute defining 'forcible compulsion.'" In a supplemental assignment of error, defendant argues that the trial court committed plain error by improperly instructing the jury and asks us to exercise our discretion to correct that plain error under ORAP 5.45(1). See Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991) (describing plain error doctrine). For the reasons that follow, we affirm.
The record discloses the following facts. At the time of the events in question, the victim, S, was 15 years old, and defendant was 48 years old. S was the daughter of defendant's neighbor. S, her mother, and other people, including defendant, were having a bonfire at S's house, and S went into her house to use the bathroom. In S's house, the bathroom door opened into the bathroom, and the door lock was broken.
While S was finishing using the bathroom and pulling up her pants, defendant opened the bathroom door, [267 Or.App. 518] entered the bathroom, and turned off the lights. He also attempted to lock the bathroom door, but the door did not lock.
Defendant started " feeling [S] up." He placed his left hand on her breast and his right hand on her buttocks; the " groping lasted roughly four to five minutes." S told defendant that she wanted to leave and told defendant to leave. S did not scream, but she tried to " lighten the situation" by calmly talking to defendant and trying to get him to stop. She told him twice to stop, but defendant did not stop.
S put one hand on defendant's stomach, pushing him back, and put her other hand on the door. She tried to open the door, but defendant pressed his foot against the door so that S could not open it--that is, she could open the door " barely even an inch" because defendant's left foot was " [s]quished underneath the crack." S tried three times to open the door and leave, but each time, she could not open the door, because defendant was blocking the door shut with his foot. S was shocked and shaking.
Defendant's girlfriend, Stolz, appeared and shoved the door partway open from the other side--wider than S had been able to open it. Stolz got one hand in the door and turned on the light. When the lights went on, S noticed that defendant's pants and boxers were all the way down, so S backed up. Defendant then held the door shut with his foot and shoulder.
Stolz pushed the door a second time and squeezed her way into the bathroom. She pushed S out of the way and began slapping and yelling at defendant. Defendant twice punched Stolz in the face. S placed her hand on the door, and she saw defendant's fist hit Stolz " square on the face" a third time.
S then elbowed defendant into the wall and slammed the door inward on him--that is, she " squished [defendant] in the door." S pushed Stolz out of the ...