[DV_listserv] Jury Instructions /Culpable Mental States

[Domestic Violence issues]

INSTRUCTIONS: In prosecution for third-degree sexual abuse, trial court correctly
refused to give defendant's requested instruction that the state had to prove that he "knew"
the victim did not consent to the sexual contact.

State v. Anderson, 264 Or App __, __ P3d __ (July 30, 2014) (Multnomah) (AAIC Jamie
Contreras). Defendant groped a stranger on a MAX train and was charged with third-degree
sexual abuse. At trial, he requested a special jury instruction that "a knowing mens rea ought to
attach" to the "lack of consent" element of the crime. The trial court (Judge Kelly Skye) refused
to give that instruction, and the jury found defendant guilty.
HELD: Affirmed (Garrett, J.). The trial court correctly refused to give the instruction.
Although the state must prove that defendant had a culpable mental state with respect to the
victim's lack of consent, the state need not prove that defendant acted "knowingly"-only that
he "acted, at a minimum, with criminal negligence with respect to lack of consent." State v.
Wier, 206 Or App 341, 352-53 (2013). Defendant's requested instruction was "precisely the
instruction that [the court] rejected in Wier," so the trial court correctly refused to give it.
http://www.publications.ojd.state.or.us/docs/A152945.pdf

**The Anderson case follows State v. Wier from last year. In Wier, the Defendant appealed his convictions for first and third degree sexual abuse. The first degree charge was reversed/remanded. The third degree charge was affirmed. The court's reasoning: The first degree sex abuse statute does not ''explicity prescribe a culpable mental state...but a culpable mental state is nevertheless required by ORS 161.115(2)." ORS 161.095 outlines which elements of each crime require proof a culpable mental state.  "Under ORS 161.095(2), unless the legislature expressly provides otherwise, a culpable mental state is required for all facts that the state must prove beyond a reasonable doubt to convict a defendant except those that relate solely to the statute of limitations, jurisdiction, venue, or other procedural prerequisites to conviction." The court relied upon an earlier case, State v. Nelson wherein it held that subjection of the victim to forcible compulsion (for Sex Abuse I)  is such an element and requires a culpable mental state. The Nelson court determined that 'knowingly' or 'with knowledge' was the correct mental state for that particular element. Wier affirmed the Anderson reasoning by concluding that "forcible compulsion" is a 'conduct' element of the (Sex Abuse I) crime and only the culpable mental states of "intentionally" or "knowingly" can apply to a conduct element. On the other hand, the court reasoned, the "lack of consent" element for the Sex Abuse III crime is a "circumstantial element of the crime," and thus only requires, at a minimum, criminal negligence.

State v. Wier, 260 Or App __, __ P3d __ (December 26, 2013) (Lane) (AAG Karla
Ferrall).
For the first-degree charge, defendant requested a special jury instruction that would have
instructed the jury that it had to find that he knowingly subjected the victim to forcible
compulsion. On the third-degree charge, defendant requested a special jury instruction that
would have instructed the jury that it had to find that he knew that the victim did not consent.
The trial court (Judge Jack Billings) declined to give the special instructions, and defendant was
found guilty.
Held: Conviction for first-degree sexual abuse reversed and remanded; remanded for
resentencing; otherwise affirmed (Duncan, J.). [1] The trial court erred when it refused to give
defendant's proposed instruction on first-degree sexual abuse, because the instruction would
have correctly informed the jury that the state had to prove that he knowingly subjected the first
victim to forcible compulsion. [2] The trial court did not err in refusing to give defendant's
proposed instruction on third-degree sexual abuse because the instruction incorrectly stated that
the state had to prove that he acted knowingly with respect to the second victim's lack of
consent. ORS 163.415 requires the state to prove that he acted knowingly, recklessly, or with
criminal negligence with respect to a victim's lack of consent, and the allegations in the
indictment did not compel the state to prove "knowingly."
http://www.publications.ojd.state.or.us/docs/A147209.pdf


Erin S. Greenawald
Sr. Assistant Attorney General
Domestic Violence Resource Prosecutor
Oregon Department of Justice
Criminal Justice Division
(503) 378-6340

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