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State v. Valdez

Court of Appeals of Oregon

March 1, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
PEDRO CARDENAS VALDEZ, aka Pedro Cardenasvaldez, Defendant-Appellant.

         Clackamas County Circuit Court CR1300156 Katherine E. Weber, Judge.

         Reconsideration allowed; former opinion modified and adhered to as modified.

         On appellant's petition for reconsideration fled January 6, 2017. Opinion filed December 21, 2016. 283 Or.App. 77.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and David O. Ferry, Deputy Public Defender, Office of Public Defense Services, for appellant's petition.

          Before Sercombe, Presiding Judge, and Tookey, Judge, and DeHoog, Judge.

         Case Summary: Defendant petitions for reconsideration of State v. Valdez, 283 Or.App. 77, 388 P.3d 396 (2016), contending that the Court of Appeals erred in relying on testimony that did not concern penile penetration to support its conclusion that there was legally sufficient evidence for a rational trier of fact to conclude that defendant committed two counts of frst-degree rape. Held: Although the court misunderstood that that testimony related to penile penetration, it concluded that the evidence, viewed in the light most favorable to the state, was nonetheless sufficient to support defendant's convictions.

         Reconsideration allowed; former opinion modified and adhered to as modified.

          TOOKEY, J.

         Defendant petitions for reconsideration of our opinion, State v. Valdez. 283 Or.App. 77, 388 P.3d 396 (2016), contending that the opinion contains a factual error. We allow reconsideration, modify our opinion as set out below, and adhere to that opinion as modified.

         Defendant appealed a judgment of conviction for, among other crimes, two counts of first-degree rape. ORS 163.375. In his third assignment of error, defendant contended that the trial court erred in denying his motion for judgment of acquittal on the second charge of first-degree rape, because there was insufficient evidence to support a finding that defendant raped the victim twice. We determined that the trial court did not err in denying defendant's motion because, in part, the victim testified that penile penetration occurred "at least twice." 283 Or.App. at 83.

         We quote from our former opinion's description of the evidence as it bears on defendant's third assignment of error:

"[T]he prosecutor used a paper cup to analogize a vagina and asked the victim to distinguish between 'touching on top' and 'insertion.' The victim testified that both-touching and insertion-happened 'at least twice.'"

283 Or.App. at 80. We cited that evidence in support of our conclusion that there was sufficient evidence for a rational trier of fact to conclude that defendant committed two counts of first-degree rape. Id. at 83-84.

         However, defendant points out that the prosecutor's paper cup analogy and the victim's response to his questions related to defendant's use of his hands, not his penis. For that reason, defendant asserts that that ...


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