State v. Del Fox

¶1concurring in part; dissenting in part.

¶2Because the trial court correctly decided that defendant was not entitled to a jury instruction on attempted sexual abuse, I would affirm his conviction for attempted sodomy in the first degree.

¶3The majority relies on State v. Dilts, 28 Or App 393, 559 P2d 1326 (1977), as precedent for the view that sexual abuse is a lesser included offense of sodomy. From my reading of more recent cases, however, I would conclude that the Supreme Court has tacitly overruled Dilts.1 The rule today is that, if “each statutory offense requires proof of a separate element,” there is no lesser included offense. State v. Crotsley, 308 Or 272, 279-80, 779 P2d 600 (1989).

¶4The offenses of sodomy and sexual abuse each contain a significant, dissimilar element that prevents the latter from being a lesser included offense of the former. If the victim is a competent adult, a conviction for first degree sodomy requires the state to establish that the defendant engaged in deviate sexual intercourse and subjected the victim to “forcible compulsion.” ORS 163.405(l)(a). Although the sodomy statute specifies no mens rea requirement, another statute requires the state to show that the defendant acted “intentionally, knowingly, recklessly or with criminal negligence.” ORS 161.115(2). For a conviction of sexual abuse, the state is required to prove that the defendant touched the victim’s intimate parts or caused the victim to touch him, and that the defendant acted for the specific *60purpose of gratifying or arousing himself or the victim. ORS 163.305(6); ORS 163.415, ORS 163.425. The elements of sodomy that are unlike sexual abuse are the deviate nature of the intended act and the intent to commit that act. The unique element of the sexual abuse crime is the intent to arouse or gratify. A comparison of the statutes reveals that proof of sodomy, which requires intentional “sexual conduct,” ORS 163.305(1), does hot establish sexual abuse. Sexual abuse requires “sexual contact,” which the legislature has defined as touching “for the purpose of’ gratification or arousal. ORS 163.305(6). Simply put, each statute requires proof of an element that the other does not.

¶5The majority writes that the mens rea requirement of “gratification or arousal is contained in the elements of sodomy.” 109 Or App at 58. There is absolutely no statutory authority for that statement, so the majority understandably cites none. The majority further writes that conduct is “sexual” only if “a component of the perpetrator’s intent [is] sexual gratification or arousal.”2 109 Or App at 58. Again, there is no authority for such an assertion. Finally, the majority engages injudicial legislation by grafting the mens rea requirement for sexual abuse onto the crime of sodomy, which already has one mens rea requirement. After this decision, the state will be required to prove an additional element when it seeks to establish sodomy. After showing that a defendant intended to and did commit the act, it will also have to show that he committed the act for the purpose of gratification or arousal. Yet the statute defining sodomy does not contain any such requirement. Query: What will be the result, if the jury believes that the defendant committed the act out of anger, not sexual desire?

¶6As discussed above, deviate sexual “conduct” — in a sodomy case — requires intent to act; sexual “contact” — in a sex abuse case — requires intent to gratify or arouse. It is axiomatic that, if the state must .prove an additional or different element, as here, an offense simply cannot be a *61“lesser included” offense. State ex rel Juv. Dept. v. Beck, 107 Or App 644, 813 P2d 1085 (1991). Defendant was not entitled to a jury instruction on sexual abuse, because the elements of that offense are not within the statutory definition of sodomy, and sexual abuse was not alleged in the charging instrument. State v. Thayer, 32 Or App 193, 195, 573 P2d 758, rev den 283 Or 1 (1978). Accordingly, I would hold that his request was properly denied.

¶7Finally, even if the Supreme Court has not tacitly overruled Dilts, we should take it upon ourselves to overrule it. It was wrong on the day that it was decided, and it is just as wrong today.