Submitted May 8, 2019.
County Circuit Court 17CR30280 Lindsay R. Partridge, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Erica Herb, Deputy Public Defender, Offce of Public Defense
Services, fled the opening brief for appellant. On a
supplemental brief were Ernest G. Lannet, Chief Defender,
Criminal Appellate Section, and Erik Blumenthal, Deputy
Public Defender. Christopher Michael Gerig fled the reply
brief and a supplemental brief pro se.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Michael A. Casper, Assistant Attorney General,
fled the briefs for respondent.
Lagesen, Presiding Judge, and James, Judge, and Landau,
Or.App. 885] PER CURIAM
appeals his convictions for first-degree rape, ORS 163.375,
and first-degree sexual abuse, ORS 163.427. The conduct
underlying the convictions occurred at a party, while the
victim was intoxicated. We affirm.
argues in his first two assignments of error that the trial
court plainly erred by not instructing the jury on the rape
and sexual abuse charges that it was required to find that
defendant knew that the victim was incapable of consent due
to physical helplessness, mental incapacity, or mental
defect. In his third and fourth assignments of error, he
similarly argues that the trial court plainly erred by not
instructing the jury that it had to find defendant to be at
least criminally negligent with respect to the victim's
lack of capacity to consent. As the state points out in
response, however, defendant's arguments are foreclosed
by our decision in State v. Phelps, 141 Or.App. 555,
558-59, 920 P.2d 1098, rev den, 324 Or. 306 (1996),
in which we concluded that the state is not required to prove
that the defendant had a culpable mental state with respect
to a victim's lack of capacity to consent due to physical
helplessness, mental incapacity, or mental
defect. See also State v. Nyembo, 292
Or.App. 215, 418 P.3d 784, rev den, 363 Or. 744
also raises, in a pro se supplemental brief,
challenges to the sufficiency of the evidence that are
predicated on the state being required to prove that
defendant had a culpable mental state as to the victim's
lack of capacity to consent. Because the state was not
required to prove that, we reject those challenges.
fifth assignment of error, defendant argues that the trial
court plainly erred by not merging the guilty verdicts.
State v. Spring is to the contrary, however, and we
[297 Or.App. 886] therefore reject that assignment without
further discussion. 172 Or.App. 508, 21 P.3d 657, rev
den, 332 Or. 559 (2001) (holding that rape and sexual
abuse guilty verdicts do not merge under ORS 161.067(1)
because each offense contains an element that the other does
 Under ORS 163.325(3), it is an
affirmative defense to first-degree rape and first-degree
sexual abuse, as charged here, for "the defendant to
prove that at the time of the alleged offense[s] the
defendant did not know of the facts or conditions responsible
for the victim's incapacity to consent." That is, a
defendant may prove a lack of knowledge to excuse the
otherwise culpable conduct. Phelps, 141 Or.App. at
558-59; see also State v. Simonov,358 Or. 531, 538
n 3, 368 P.3d 11 (2016) (using ORS 163.375 and ...