Argued and Submitted January 29, 2014.
Washington County Circuit Court C110526CR. D. Charles Bailey, Jr., Judge.
Stephanie J. Hortsch, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Karla H. Ferrall, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.[*]
[269 Or.App. 667] HASELTON, C. J.
Defendant, who sexually assaulted a resident of the adult foster care facility where he worked, appeals from a judgment of conviction for first-degree rape (Count 2), first-degree sodomy (Count 4), and first-degree
sexual abuse (Counts 7 and 8, merged, and Counts 9 and 10, merged). Counts 2, 4, 8, and 10 were based on allegations that the victim, A, was incapable of consent by reason of mental defect. Counts 7 and 9 were based on a forcible compulsion theory. Defendant assigns error to the trial court's denial of his motion for judgment of acquittal (MJOA) on all counts on the grounds that there was insufficient evidence: (1) as to Counts 2, 4, 8, and 10, of A's incapacity to consent; and (2) as to Counts 7 and 9, of forcible compulsion. See ORS 163.305(2), (3); ORS 163.315(1); State v. Marshall, 350 Or. 208, 253 P.3d 1017 (2011) (evidentiary standard for forcible compulsion); State v. Reed, 339 Or. 239, 118 P.3d 791 (2005) (evidentiary standard as to incapacity to consent due to mental defect). Because there was sufficient evidence of A's incapacity to consent, the trial court did not err in denying the MJOA as to Counts 2, 4, 8, and 10; conversely, because there was insufficient evidence of forcible compulsion, the trial court erred in denying the MJOA with respect to Counts 7 and 9 and in finding defendant guilty of those charges. We therefore reverse as to Counts 7 and 9, remand for entry of judgment in accordance with this opinion and for resentencing, and otherwise affirm.
In reviewing the denial of an MJOA, we view the facts and reasonable attendant inferences in the light most favorable to the state. State v. Cunningham, 320 Or. 47, 63, 880 P.2d 431 (1994), cert den, 514 U.S. 1005, 115 S.Ct. 1317, 131 L.Ed.2d 198 (1995). In accordance with that standard, we summarize the material facts, as amplified and supplemented below.
Defendant worked as a caregiver at a foster care home for adults with mental disabilities from November 2009 until he was fired on January 13, 2011. During that period, A, who was 22 at the time, resided at the facility. She knew the defendant as " Matt" or " Little Matt."
[269 Or.App. 668] The day after defendant's firing, two other caregivers were discussing his termination in the facility's kitchen. A, who overhead their conversation, entered the room and stated, " I'm glad he's gone." Then she took one of the caregivers by the hand and led the caregiver into her bedroom. A pointed to her television and to her bed, grabbed her breasts and groin area, and said, " Matt touched me." After A and the caregiver left the bedroom, A started crying and wailing and became " hysterical." A few minutes later, A went back into the kitchen and stated, " Penis in my mouth, yuck." At that point, the caregiver contacted her manager, who, in turn, contacted the Washington County Sheriff's Office, which initiated an investigation.
A was interviewed at the Child Abuse Response and Evaluation Services Northwest (CARES) center, which evaluates children and ...