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State v. Kerne

Court of Appeals of Oregon

December 13, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JAMES EVERETT KERNE, Defendant-Appellant.

          Submitted March 29, 2017

         Polk County Circuit Court 14CR32394 Monte S. Campbell, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erik Blumenthal, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Shannon T. Reel, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.

         Case Summary: Defendant appeals from a judgment of conviction for 10 counts of frst-degree rape, ORS 163.375, and 10 counts of coercion, ORS 163.275. Defendant seeks reversal of the rape convictions, contending that the trial court plainly erred when it did not instruct the jury that it was required to fnd that he knowingly subjected the victim to forcible compulsion, as required under State v. Nelson, 241 Or.App. 681, 251 P.3d 240, rev dismissed, 354 Or. 62 (2012). Held: The trial court plainly erred by not giving the requested instruction; however, the Court of Appeals declined to exercise its discretion to correct that error because the omission of the instruction was harmless. The jury's verdict on the coercion counts demonstrates that the jury necessarily discredited defendant's assertion that he did not know that the victim did not understand it was all "just a game, " and affrmatively found to the contrary that defendant knew that he was compelling the victim to engage in sex through threats of harm.

         [289 Or. 346] LAGESEN, J.

         Defendant appeals from a judgment of conviction for 10 counts of first-degree rape, ORS 163.375, and 10 counts of coercion, ORS 163.275. He seeks reversal of the rape convictions, contending that the trial court plainly erred when it did not instruct the jury that it was required to find that he knowingly subjected the victim to forcible compulsion, as required under State v. Nelson. 241 Or.App. 681, 251 P.3d 240 (2011), rev dismissed, 354 Or. 62 (2012). Although defendant is correct that the trial court plainly erred, we decline to exercise our discretion to correct that error because it was harmless. See State v. Belen. 277 Or.App. 47, 54-57, 369 P.3d 438 (2016) (declining to correct trial court's erroneous failure to instruct the jury regarding the mental state element of first-degree rape where error was harmless). We therefore affirm.

         Defendant's crimes were against his former student, an immigrant whose native language is Chuukese (a language of Micronesia). He first met the victim when she was a 14-year-old high school student. After she had graduated from high school, defendant came up with a scheme that would leave the victim no choice but to have sex with him. He did so by convincing her that she had to make sex tapes with him to spare herself, her family, and defendant from harm or death from a cartel. Among other things, defendant, pretending to be someone named George Lopez, sent text messages and Facebook messages to the victim. In the messages, "Lopez" threatened to kill the victim and defendant. Defendant then told the victim that "Lopez" was threatening him, that "Lopez" was taking defendant's money, and that the only way to stop "Lopez" was for the victim to make sex videos with defendant. Specifically, defendant told the victim that they needed to make two videos per month for two years to satisfy "Lopez" and his cartel. The victim believed the threats to be real and complied with the demands. She did this despite not wanting to have sex with defendant and would not have done so absent the threats. As a result, defendant made videos with the victim from November 2013 to August 2014, making on average two videos per month. The victim had sex with defendant only when making the videos, or when she believed them [289 Or. 347] to be making the videos. The victim stopped making the videos upon getting a message from "Lopez" containing a Chuukese word that she had taught to defendant. The use of Chuukese alerted her to the fact that defendant was pretending to be "Lopez." A family member of the victim later reported defendant to police.

         Based on that conduct, defendant was charged with one count of first-degree rape and one count of first-degree coercion for each month in which a video was made, for a total of 10 counts of first-degree rape and 10 counts of coercion. The state's theory, as laid out in its closing argument, was that defendant committed coercion each time the victim had sex with him because she did so based on the purported threats by "Lopez, " and that the same conduct also constituted rape by forcible compulsion. The state argued to the jury:

"So, basically what you're going to hear is that there are 10 counts of RAPE IN THE FIRST DEGREE and 10 counts of COERCION. A count for rape and a count for coercion for every month from November through August of 2014. That is one time in each month between November and August of 2014 [that] the Defendant coerced and raped [the victim].
"Coercion, what does that mean. You're going to be instructed that you have [to find] beyond a reasonable doubt that the Defendant knowingly compelled [the victim] to engage in conduct which [the victim] had a right to legally abstain from, and that he compelled her or induced her-was the compelling or inducing was accomplished by instilling in fear in [the victim] that if she didn't ...

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