Opinion
A176194
05-17-2023
STATE OF OREGON, Plaintiff-Respondent, v. COLIN THOMAS CARTER, aka Colin Thomas Carter, Jr., Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Joshua B. Crowther, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, fled the brief for respondent.
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).
Submitted March 17, 2023
Jackson County Circuit Court 16CR61880; A176194 Lorenzo A. Mejia, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Joshua B. Crowther, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, fled the brief for respondent.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and Jacquot, Judge.
JOYCE, J.
Defendant appeals from a judgment of conviction for two counts of first-degree rape (Counts 1 and 4) and one count each of first-degree sexual abuse (Count 2), first-degree sodomy (Count 3), and first-degree unlawful sexual penetration (Count 5). For the reasons that follow, we reverse Count 4 and otherwise affirm.
Forcible compulsion. Each of the crimes with which defendant was charged required proof that he used physical force to compel the victim to engage in the sexual conduct. Defendant moved for a judgment of acquittal, arguing that the state's evidence was insufficient on that element as to each count. The trial court denied that motion and defendant now challenges that denial in five assignments of error under a combined argument.
To prove that a defendant compelled a victim to have sexual contact by physical force, the state must prove (1) that the physical force caused the victim to submit to or engage in sexual conduct and (2) that the physical force was greater in degree or different in kind than the force inherent in the act of sexual conduct at issue. State v. Marshall, 350 Or. 208, 227, 253 P.3d 1017 (2011). Our task on review from the denial of a motion for judgment of acquittal is a familiar one: to decide whether, after viewing the evidence in the light most favorable to the state, any rational trier of fact could have found the essential elements of the crime- here, compulsion by physical force-beyond a reasonable doubt. State v. Simmons, 279 Or.App. 756, 758-59, 379 P.3d 580, rev den, 360 Or. 697 (2016).
We conclude that because the state provided evidence of forcible compulsion for Counts 1, 2, 3, and 5, the trial court correctly denied the motion for judgment of acquittal. The state provided testimony that defendant "grabbed [M] by the back of the hair, spun [her] around, *** [and] said, T fucking said bend over'" as he forced her to have sexual intercourse (Count 1). There is further evidence that he fought M over her shorts and "nudged" her into a chair in order to digitally penetrate her the first time (Count 2). There is evidence that defendant pried M's mouth open before orally sodomizing her, cutting her gums (Count 3). Finally, there is evidence that defendant again fought M over her shorts in order to digitally penetrate her for a second time (Count 5). We thus agree that that evidence was sufficient to submit the question of forcible compulsion, as defined in Marshall, to the factfinder for Counts 1, 2, 3, and 5. Accordingly, the trial court did not err in denying the corresponding motions for judgment of acquittal.
Plain error. Defendant also challenges one of his two first-degree rape convictions (Count 4). The state charged defendant with, among other things, two identical counts of first-degree rape, ORS 163.375(1)(a) both alleging the same theory. Pursuant to ORS 163.375(1), first-degree rape involves "sexual intercourse with another person." In this case, two counts of first-degree rape are listed in the indictment, in the court's oral verdict, and in the final judgment. However, from the time that the indictment was issued to the time that the trial court entered judgment, the parties and the court referred only to one instance of sexual intercourse. Specifically, neither defendant's nor the victim's testimony recounted more than one instance of sexual intercourse, and neither the prosecutor nor defense counsel referred to more than one instance of sexual intercourse. The only time during the trial that the second rape count was acknowledged was when defense counsel provided argument for a judgment of acquittal on Counts 1, 2, 3, and 5 individually, as explained above, then added, "I'm sorry, I can't-I left out Count 4." and also asked for a judgment of acquittal on Count 4. Counsel made no further argument for acquittal on Count 4. In concluding its closing argument, the state asked the court to "find the Defendant guilty of rape, unlawful sexual penetration, sodomy, and sex abuse 1."
In the absence of any evidence of a second rape, defendant now asks us to exercise our discretion to reverse one of the first-degree rape convictions, which we understand as a request for plain-error review. See Ailes v. Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d 956 (1991) (describing scope of plain error review); State v. Reynolds, 250 Or.App. 516, 521, 280 P.3d 1046, rev den, 352 Or. 666 (2012) (describing exercise of discretion).
Although defendant did not explicitly request plain error review and instead asked for us to "exercise [our] discretion and reverse the judgment for count four," the state concedes that "[a]lthough [defendant's] request [for discretionary review] does not use the phrase 'plain error,'" his request for "discretionary review necessarily refers to review for plain error." State v. Ardizzone, 270 Or.App. 666, 673, 349 P.3d 597, rev den, 358 Or. 145 (2015) ("[W]e ordinarily will not proceed to the question of plain error unless an appellant has explicitly asked us to do so.").
We agree that-in the absence of any proof to support a second identical count of first-degree rape-it is plain that the conviction on that count was erroneous. That is so for a number of reasons, not least of which is the fact that entering a criminal conviction without sufficient proof-let alone without any proof-"is of constitutional magnitude" in that it violates the Due Process Clause of the Fourteenth Amendment of the United States Constitution. Reynolds, 250 Or.App. at 522.
What remains is the question of whether we should exercise our discretion to correct that error. We elect to do so for the same reasons given in Reynolds, 250 Or.App. at 522-26. Here, as in that case, the gravity of the error is substantial and correcting the error does not "undermine the important policies behind the preservation rule, i.e., 'procedural fairness to the parties and the trial court, judicial economy, and full development of the record.'" Reynolds, 250 Or.App. at 523 (quoting State v. Parkins, 346 Or. 333, 340, 211 P.3d 262 (2009)). Furthermore, as in Reynolds, "we cannot fathom any reason why the state would have an interest in upholding the erroneous conviction," nor can we "conceive of [any] plausible tactical reason for defendant's failure to make [his] argument below." Id. at 524-25 (emphasis in original).
As previously noted, defendant did move for a judgment of acquittal on Count 4, but did not make any argument that the state had not presented any evidence as to that count. Defendant implicitly acknowledges that his duplication argument regarding Count 4 is unpreserved.
Conviction on Count 4 reversed; remanded for resentencing; otherwise affirmed.