Submitted March 29, 2017
County Circuit Court 14CR32394 Monte S. Campbell, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Erik Blumenthal, Deputy Public Defender, Offce of Public
Defense Services, fled the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Shannon T. Reel, Assistant Attorney General,
fled the brief for respondent.
Ortega, Presiding Judge, and Egan, Judge, and Lagesen, Judge.
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.
Or. 346] LAGESEN, J.
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.
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
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
"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 ...