[DV_listserv] Legal Update

[Domestic Violence issues]

INSTRUCTIONS / SEXUAL OFFENSES: In prosecution for "forcible compulsion"
offenses, the trial court committed plain error when it did not instruct jurors that state had
to prove that defendant acted with a culpable mental state regarding "forcible compulsion"
element.

State v. Gray, 261 Or App __, __ P3d __ (February 20, 2014) (Yamhill)
When defendant and the victim were living together as a married couple, she reported
to police officers that he had strangled and forcibly raped her despite her resistance and saying
"no." At the time she reported the assault, she had red blotches on her neck. Defendant denied
some of the accusations and asserted they had had consensual intercourse. He was charged with
a slew of offenses, including first-degree rape and first- and second-degree sexual abuse. At
trial, the victim admitted that, in the past, they had engaged in rough sex consensually. The court
(Judge Caroll Tichenor) gave the standard "forcible compulsion" instructions and defendant did
not object or request additional instructions. The jury found defendant guilty of those offenses
and acquitted him on the rest. For the first time on appeal, defendant argued that the trial court
committed plain error under State v. Nelson, 241 Or App 681 (2011), when it did not sua sponte
instruct the jurors that they had to find that he acted with the requisite culpable mental state with
respect to the "forcible compulsion" element.

HELD: Reversed and remanded on those two counts; remanded for resentencing.
(Haselton, C.J.). [1] ORCP 59 H does not preclude appellate review of asserted instructional
plain error. "Rather, our review of such error, like any other purported plain error, is determined
by reference to the construct prescribed in State v. Brown, 310 Or 347 (1990)." [2] "The trial
court must instruct the jury on all the elements of the charged crimes.... Because the 'subjected
to forcible compulsion' element of first-degree rape and first-degree sexual abuse requires that
the jury find that the defendant acted with a culpable mental state, Nelson, the trial court is
required to instruct the jury that, to convict, it must determine that the state has proved beyond a
reasonable doubt that defendant acted with a culpable mental state in subjecting the victim to
forcible compulsion. That legal point is obvious and not reasonably in dispute. Here, the trial
court's instruction incorrectly stated the law because it omitted elements of the charged crimes.
We conclude that the asserted instructional error is plain." [3] The error warrants plain-error
review because, given the facts, the jurors may have concluded that defendant was not aware that
his conduct constituted "forcible compulsion." Moreover, "although defendant could have
prevented the problem by simply requesting a further instruction, which militates against
exercising our discretion, defendant's challenged convictions are for serious felonies."
http://www.publications.ojd.state.or.us/docs/A149013.pdf

NOTE: The court reversed only the convictions for first-degree rape and sexual abuse,
which were based on "forcible compulsion" allegations; it affirmed his conviction for seconddegree
sexual abuse, which was based instead on an allegation that the victim "did not consent"
to the sexual intercourse. ORS 163.425(1)(a).

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