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State v. Haltom

Court of Appeals of Oregon

July 17, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
AUSTIN RAY HALTOM, Defendant-Appellant.

          Argued and submitted April 30, 2019

          Yamhill County Circuit Court 16CR55213; Ladd J. Wiles, Judge.

          Neil F. Byl, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Michael A. Casper, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         [298 Or.App. 534] PER CURIAM

         Defendant appeals a judgment of conviction for second-degree sexual abuse, ORS 163.425, asserting that the trial court erred in instructing the jury that it could convict him of that crime if it found that he acted recklessly or negligently with respect to the victim's lack of consent.[1]Defendant argues that, for purposes of second-degree sexual abuse, the victim's lack of consent is "a conduct element," and, therefore, in order to convict, the jury was required to find that he knew that the victim did not consent.[2] See State v. Simonov, 358 Or. 531, 539-40, 368 P.3d 11 (2016) ("Unless otherwise indicated for a particular offense, 'conduct' elements require proof of an intentional or knowing mental state, 'result' elements require proof of an intentional, reckless, or criminally negligent mental state, and 'circumstance' elements require proof of a knowing, reckless, or criminally negligent mental state."). In defendant's view, the Supreme Court's analysis in Simonov (relating to the crime of unauthorized use of a vehicle) supports that outcome.

         The state responds, and we agree, that our decision in State v. Wier, 260 Or.App. 341, 317 P.3d 330 (2013), controls the outcome in this case. In Wier, we considered whether, for purposes of third-degree sexual abuse, the state was required to prove a knowing mental state with respect to the victim's lack of consent, or whether "recklessness or criminal negligence would suffice." Id. at 352. We concluded that the victim's lack of consent "is a circumstance element of the crime" and the "culpable mental states of knowledge, recklessness, and criminal negligence all may apply to a circumstance." Id. Thus, to prove that a defendant committed third-degree sexual abuse, "the statute requires the state to prove only that a defendant acted, at a minimum, with criminal negligence with respect to lack of consent." Id. at 353. Wier establishes that the victim's lack of consent is a circumstance element that the state can prove using a reckless or criminally negligent mental state.

         [298 Or.App. 535] Defendant suggests that Wier cannot survive Simonov. We are not persuaded. In determining whether one of our cases remains "good law" in light of a subsequent Supreme Court decision, we analyze (1) whether the Supreme Court case overrules our prior holding and, (2) if it does not, whether the Supreme Court's analysis demonstrates that our prior decision is "'plainly wrong' such that we should overrule it ourselves." State v. McKnight, 293 Or.App. 274, 278, 426 P.3d 669, rev den, 363 Or. 817 (2018). In our view, Simonov-which addressed a statute with a different structure and purpose than the sexual abuse statutes- does not establish that Wier is plainly wrong. Cf. Simonov, 358 Or at 547 n 5 (observing that, in the third-degree sexual abuse statute, the "proscribed act-subjecting another person to sexual contact-is set out in a separate paragraph from the element that the victim does not consent," and noting our decision in Wier that criminal negligence will suffice to prove the "does not consent" element).

          AOYAGI, J., concurring.

         Today we hold that lack of consent is a circumstance element of the crime of second-degree sexual abuse, such that a person may be convicted of the offense if he or she is criminally negligent with respect to the other person's consent. I agree with that disposition because it is consistent with State v. Wier, 260 Or.App. 341, 352, 317 P.3d 330 (2013), in which we held the same with respect to the lack-of-consent element of third-degree sexual abuse. I write separately, however, because I believe that Wier was incorrectly decided and that, by extension, this case is incorrectly decided. At the same time, "we will overrule a case only when it is plainly wrong, a rigorous standard grounded in presumptive fidelity to stare decisis." State v. B. A. F., 290 Or.App. 1, 3, 414 P.3d 486 (2018) (internal quotation marks omitted). I am not prepared to say that Wier is "plainly wrong" under that rigorous standard. Accordingly, I view the issue as one for the Supreme Court to address, and, as such, concur.

         A person commits the crime of second-degree sexual abuse when the person subjects another person to sexual intercourse or certain acts of penetration "and the victim [298 Or.App. 536] does not consent thereto." ORS 163.425(1)(a). A person commits the crime of third-degree sexual abuse when the person subjects another person to sexual contact and "[t]he victim does not consent to the sexual contact" or "is incapable of consent" due to age, ORS 163.415(1)(a), or when the person intentionally propels a dangerous substance at a victim for purposes of sexual arousal or gratification "without the consent of the victim," ORS 163.415(1)(b). In Wier, we held that "the fact that '[t]he victim does not consent to the sexual contact' is a circumstance element of the crime" of third-degree sexual abuse.[1]260 Or.App. at 352 (quoting ORS 163.415(1)(a)). We hold the same today with respect to second-degree sexual abuse.

         The Supreme Court recently discussed the difference between conduct elements and circumstance elements in State v. Simonov, 358 Or. 531, 540-41 368 P.3d 11 (2016). The defendant in that case was charged with unauthorized use of a vehicle (UUV) under ORS 164.135(1)(a), which is committed when a person "takes, operates, exercises control over, rides in or otherwise uses another's vehicle, boat or aircraft without consent of the owner." Simonov, 358 Or at 534, 546 (quoting ORS 164.135(1)(a); emphasis added). The defendant asked the trial court to instruct the jury that the state had to prove that he knew that the owner did not consent to his use of the vehicle in order to convict him of UUV. The trial court denied the instruction and instead instructed the jury that it could convict defendant if he was criminally negligent on the issue of consent. Simonov, 358 Or at 533.

         The Supreme Court reversed the trial court, agreeing with defendant (and us) that knowledge was the minimum [298 Or.App. 537] culpable mental state for the lack-of-consent element of UUV. Simonov, 358 Or at 549. The court began its analysis by noting that, when an element of an offense requires a culpable mental state (as most do), but the statute creating the offense does not specify the mental state, the required minimum mental state depends on the nature of the element. Id. at 538-39. The minimum culpable mental state for "conduct" elements is knowledge, while the minimum culpable mental state for "result" and "circumstance" elements is criminal negligence. Id. at 539-40. As clarified in Simonov, "conduct elements are those that describe the nature or essential character of the defendant's act or omission." Id. at 541 (emphasis added). "[W]hen an element of an offense within the Criminal Code describes the nature, that is, the essential character, of a proscribed act or omission, it generally is a conduct element." Id. at 546. By contrast, "circumstance" elements are those that describe "an accessory fact that accompanies the defendant's conduct." Id. The court recognized in Simonov that "the line between conduct and other elements is not always easy to draw" but reiterated that it "nevertheless is a principled [line]." Id. at 544. Ultimately, "[w]hether a particular element-including ...


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