State v. Beckner

                                       744

  Submitted December 6, 2018, reversed and remanded with instructions to
enter judgment of conviction for third-degree sexual abuse and for resentencing
        April 29, petition for review denied August 27, 2020 (

)


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                 BRANDON TAYLOR BECKNER,
                      Defendant-Appellant.
                   Linn County Circuit Court
                     16CR35023; A164610
                                  

    Defendant was convicted of one count of sexual abuse in the first degree,
ORS 163.427, and sentenced to life in prison without the possibility of parole. On
appeal, he argues that the trial court erred in denying his motion for judgment of
acquittal, because the evidence was insufficient to establish forcible compulsion.
Viewed in the light most favorable to the state, the evidence showed that defendant approached the victim in a women’s restroom, placed a finger to his lips in
a “stay quiet” gesture, grabbed the victim by the hips with both hands, and then
put both hands on her breasts. The victim fled the restroom as soon as defendant
touched her breasts. Held: The trial court erred in denying the motion for judgment of acquittal. Regarding defendant’s finger-to-lips gesture, the evidence was
insufficient to establish that that gesture was an express or implied threat that
placed the victim in fear of immediate or future death, physical injury, or kidnap
and caused her to submit to the touching of her breasts. Regarding defendant’s
grabbing of the victim’s hips, the evidence was insufficient to establish that that
unwanted contact was an act of physical force that compelled the victim to submit
to the touching of her breasts.
    Reversed and remanded with instructions to enter judgment of conviction for
third-degree sexual abuse and for resentencing.



    Daniel R. Murphy, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Morgen E. Daniels, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Susan G. Howe, Assistant Attorney
General, filed the brief for respondent.
  Before DeHoog, Presiding Judge, and Egan, Chief Judge,
and Aoyagi, Judge.
Cite as 

 (2020)                        745

  AOYAGI, J.
   Reversed and remanded with instructions to enter judgment of conviction for third-degree sexual abuse and for
resentencing.
746                                            State v. Beckner

         AOYAGI, J.
         Defendant was convicted of one count of sexual
abuse in the first degree, ORS 163.427, and sentenced to
life in prison without the possibility of parole. On appeal,
he assigns error to the trial court’s denial of his motion
for judgment of acquittal, asserting that there was insufficient evidence of forcible compulsion. He also challenges
his sentence as constitutionally disproportionate, citing the
nature of the offense, the specifics of his criminal history,
and his significant mental health issues. For the reasons
that follow, we agree that the trial court erred in denying
the motion for judgment of acquittal. Given our disposition,
we do not reach defendant’s other assignment of error. We
reverse and remand for the trial court to enter a conviction
for sexual abuse in the third degree, ORS 163.415, and for
resentencing.
                             FACTS
         In reviewing the denial of a motion for judgment of
acquittal, we view the evidence in the light most favorable
to the state to determine whether a rational factfinder could
find that the state had proven the essential elements of the
offense beyond a reasonable doubt. State v. Lupoli, 

, 

 (2010). We state the facts in accordance with that standard.
          Defendant entered a women’s restroom in a market building in Albany and went inside one of the stalls.
Subsequently, the victim, who worked in the building, came
into the restroom. She noticed that one of the stalls was occupied. The victim went into the fifth stall, used the toilet, and
exited the stall. As she was walking to the sinks, the victim
saw a head pop up from the occupied stall. She did not see the
person, but it seemed odd. She went to the far right sink closest to the door and started washing her hands. While washing
her hands, the victim looked in the mirror and saw defendant
come out of the occupied stall and approach her from behind.
At that point, she could see clearly that it was a man. The victim, who is 5' 7", described the man as a “little bit taller” than
her and “a bit thicker … [b]ut not fat.” Defendant silently
put his finger to his lips. The victim was “shocked” and “startled” by the gesture, which she interpreted as threatening
Cite as 

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and understood to mean “stay quiet.” If he had not made the
gesture, she would have thought he was “someone who associates with being a woman.” Once he made the gesture, she did
not know his intentions.
          As the victim turned to face him, defendant grabbed
the victim’s hips with both of his hands in “a pretty firm
grab” for “maybe a couple of seconds.” The victim was “just
so in shock” when he grabbed her hips that she “felt like [she]
couldn’t move.” Defendant released her hips and grabbed her
breasts with both hands. He grabbed her breasts less firmly
than he had her hips. As soon as defendant touched her
breasts, the victim turned and ran out the door. Defendant
did not tighten his grip or do anything to try to stop her
leaving. The victim could not say whether the entire incident lasted more or less than 10 seconds; she could only say
that everything happened “very quickly.”
          Defendant was charged with one count of sexual abuse in the first degree. Specifically, the indictment
charged him with “unlawfully and knowingly, by means of
forcible compulsion, subject[ing the victim], to sexual contact by touching her breasts, a sexual or intimate part of
[the victim].” See ORS 163.427(1)(a)(B) (“A person commits
the crime of sexual abuse in the first degree when that
person … [s]ubjects another person to sexual contact and
… [t]he victim is subjected to forcible compulsion by the
actor[.]”). “Forcible compulsion” is compulsion by either
(1) “physical force,” or (2) “[a] threat, express or implied, that
places a person in fear of immediate or future death or physical injury to self or another person, or in fear that the person or another person will immediately or in the future be
kidnapped.” ORS 163.305(1).1
          Defendant waived jury and proceeded to a bench
trial. At the close of the state’s evidence, defendant moved
for a judgment of acquittal, arguing that the evidence was
insufficient to prove forcible compulsion and that, consequently, the court should consider only the lesser-included
offense of third-degree sexual abuse. See ORS 163.415(1)
(“A person commits the crime of sexual abuse in the third

   1
     ORS 163.305 was amended in 2017, but those amendments do not affect our
analysis, so we refer to the current version of the statute.
748                                                         State v. Beckner

degree if … [t]he person subjects another person to sexual
contact and … [t]he victim does not consent to the sexual
contact[.]”). The state opposed the motion. It argued that, by
grabbing the victim’s hips, defendant physically compelled
her to submit to the grabbing of her breasts. Alternatively,
the state pointed to defendant’s finger-to-lips gesture as a
threat of harm.
         The trial court denied defendant’s motion. The
court explained that its interpretation of the caselaw was
that forcible compulsion comes down to whether the victim
was “reasonably coerced under the circumstances,” which
is a “contextual determination.” The court then identified
the evidence that it considered relevant to the analysis and
concluded that the victim reasonably felt coerced in these
circumstances:
    “[S]he’s alone with a man in a bathroom where he has no
    business being, and he’s telling her through a gesture to
    be silent. The reasonable person would be coerced by that.
    A reasonable person would find that to be a coercive act
    under those circumstances. He then—if there was any
    doubt up until then, the doubt totally evaporates as soon
    as he grabs her by the hips. As soon as he grabs her by
    the hips, he is now exercising coercive physical control over
    her, which not only significantly exacerbates the level of
    coercion but also removes any ambiguity that may have
    previously existed concerning the meaning of his shushing
    gesture or anything else that he did. At that point there is
    complete reasonable objective and subjective basis for fear
    and coercion.”
        The trial proceeded. Sitting as factfinder, the trial
court found defendant guilty of sexual abuse in the first
degree. He was convicted and sentenced to life in prison
without the possibility of parole.2
                                 ANALYSIS
         On appeal, defendant assigns error to the trial
court’s denial of his motion for judgment of acquittal on
    2
      “The presumptive sentence for a sex crime that is a felony is life imprisonment without the possibility of release or parole if the defendant has been sentenced for sex crimes that are felonies at least two times prior to the current sentence.” ORS 137.719(1). Sexual abuse in the first degree is a Class B felony, ORS
163.427(2), and defendant has two prior convictions for felony public indecency.
Cite as 

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first-degree sexual abuse, arguing that the evidence was
insufficient to establish forcible compulsion. Specifically,
defendant argues that the evidence was insufficient to
establish (1) that his grabbing of the victim’s hips was an
act of physical force that compelled the victim to submit to
defendant’s grabbing of her breasts, or (2) that his finger-tolips gesture was a threat of death, physical injury, or kidnap
that compelled the victim to submit to defendant’s grabbing
of her breasts. The state responds that the evidence was sufficient to prove forcible compulsion, because it showed that
defendant used the element of surprise, an implicit threat of
harm, and the physical force of grabbing the victim’s hips to
“immobilize” the victim in order to grab her breasts.
         This is a difficult case that requires a close analysis
of the requirements to establish forcible compulsion for the
crime of first-degree sexual abuse, ORS 163.427(1)(a)(B).
Ultimately, however, we agree with defendant that the state’s
evidence was insufficient to establish forcible compulsion.
          There is no question that the evidence was sufficient to establish sexual abuse. That is, defendant does not
dispute (nor could he) that there was evidence that he subjected the victim to nonconsensual sexual contact when he
grabbed her breasts. The only question on appeal is whether
there was evidence that defendant used forcible compulsion,
i.e., that he compelled the victim to submit to the grabbing
of her breasts by using either “physical force” or a qualifying
“threat.” ORS 163.305(1).
         Given the sequence of events, we begin with whether
the evidence was sufficient to establish forcible compulsion
by threat. Not all threats qualify for forcible compulsion.
Rather, the statute requires “[a] threat, express or implied,
that places a person in fear of immediate or future death or
physical injury to self or another person, or in fear that the
person or another person will immediately or in the future
be kidnapped.” ORS 163.305(1)(b). In light of the statutory
context, the threat must go beyond the threat of sexual contact itself. That is, forcible compulsion by threat requires
the perpetrator to say or do something that places the victim in fear that she or someone else will be killed, physically
injured, or kidnapped unless she submits to or engages in
750                                                         State v. Beckner

the sexual contact. It is not enough that the perpetrator says
or does something that places the victim in fear that the
perpetrator is going to sexually touch her.3

          Here, defendant placed a finger to his lips in a “stay
quiet” gesture as he silently approached the victim from
behind while they were alone in a women’s restroom. That
is an incredibly unsettling thing to experience. The victim
perceived the gesture as threatening, and there is no dispute that such a gesture in such circumstances reasonably
would cause a person to feel fear and trepidation, as the
victim did. However, the statute requires more than generalized fear and trepidation, or even a fear of imminent
nonconsensual contact. The statute requires the defendant
to have made an express or implied threat of immediate or
future death, physical injury, or kidnapping of the victim or
another person. ORS 163.305(1)(b); see also State v. Magel,

, 

 (2011) (concluding
that the evidence was insufficient to support a conviction
for first-degree rape based on forcible compulsion by threat,
where the victim subjectively believed that the defendant
would physically force her to engage in sexual intercourse if
she tried to resist, but where the defendant had not actually
said or done anything that “qualif[ied] as an implied threat
in the legal sense”).

         The evidence in this case was insufficient to meet
that legal standard. The victim did not testify that defendant putting his finger to his lips caused her to fear that he
would kill, physically injure, or kidnap her unless she submitted to unwanted sexual contact.4 Nor could a factfinder
reasonably infer that, when defendant put his finger to his
lips, he was implicitly threatening to kill, physically injure,

     3
       We express no opinion as to whether, in a different statutory context, a
threat of unwanted sexual contact might constitute a threat of “physical injury.”
In this context—a statute in which sexual abuse is a given and only the degree of
the crime is at issue—it is evident that the legislature intended a threat of “physical injury” to mean injury beyond the sexual contact itself. Otherwise, every act
of sexual abuse would be forcibly compelled by threat, because, at some point, the
victim would fear that she was about to be sexually abused.
     4
       The victim did testify to a generalized “concern” that “possibly” “something” could happen to her if she ran out of the restroom. As discussed, however,
ORS 163.305(1)(b) requires more than generalized fear and trepidation.
Cite as 

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or kidnap the victim if she did not submit to sexual contact.
The line between speculation and reasonable inference is
“sometimes faint” and may be “difficult to articulate with
precision,” but “we have held evidence insufficient to support an inference when the conclusion to be drawn from it
requires too great an inferential leap.” State v. Bivins, 

, 

 (2004) (internal quotation
marks omitted). Here, inferring that, when defendant put
his finger to his lips, he was threatening to kill, physically
injure, or kidnap the victim if she did not submit to sexual contact is too great an inferential leap.5 The evidence
was therefore insufficient to establish forcible compulsion by
threat as defined in ORS 163.305(1)(b).

         The next question is whether the evidence was sufficient to establish forcible compulsion by physical force.
Forcible compulsion by physical force occurs when a person
uses “physical force” to “compel” someone to “submit to or
engage in” sexual contact. ORS 163.305(1)(a); see State v.
Marshall, 

, 

 (2011) (concluding that, although ORS 163.427 does not specify what the
victim is being forcibly “compelled” to do, the “only possible”
meaning in context is that the victim is being compelled by
force to “submit to or engage in” sexual contact). The state
is no longer required to prove that the person used enough
physical force to “overcome earnest resistance,” as was
required prior to 1999. ORS 163.305(2) (1997) (“ ‘Forcible
compulsion’ means physical force that overcomes earnest
resistance ….”). Rather, the state must prove that the person used enough force to overcome the victim’s will, i.e., the
victim’s desire not to engage in the sexual contact, regardless whether the victim was actively resisting, passively submitting to, or unwillingly engaging in the sexual contact.
Marshall, 

 (stating that the statute requires
the use of physical force “of a degree or quality that is sufficient to compel the act at issue—sufficient, that is, to cause

    5
      We note that defendant and the victim were strangers to each other, so
defendant’s gesture carried no special significance. The victim understood it to
have its usual meaning of “stay quiet.” See State v. Jimenez, 

, 

 (2012) (considering earlier interactions between the victim and the defendant as relevant to whether defendant’s conduct involved an
implicit threat).
752                                                         State v. Beckner

a victim to submit to, or to engage in, the sexual contact
against his or her will” (emphasis in original)).6
         How much force was necessary to overcome the
victim’s will is ordinarily a question of “degree” and highly
context dependent. 

 The force “need not [have risen] to
the level of violence,” but it “must [have been] sufficient to
‘compel’ the victim, against the victim’s will, to submit to or
engage in the sexual contact.” 

 Factors such as the victim’s age, differences in age, size, and strength between the
victim and the defendant, and the relationship between the
victim and the defendant all may be relevant to whether
the amount of force was “sufficient to ‘compel’ [the victim] to
submit to or engage in a sexual contact against his or her
will.” Id. at 226; see, e.g., State v. O’Hara, 

, 

 (2012), abrogated on other grounds by
State v. Varnornum, 

, 

 (2013) (holding that there was sufficient evidence of forcible compulsion
where the defendant, a physically large man in his mid-40s,
used his body weight to push the teenaged victim down onto
a bed, and then held her arms above her head while having
intercourse with her). The force used by the defendant also
must have been “greater than or qualitatively different from
the simple movement and contact that is inherent in the
action of touching an intimate part of another.” Marshall,

.
         In addition to needing to prove that the perpetrator
used enough physical force to overcome the victim’s will—
however much force that might have been under the particular circumstances—the state also must prove a causal
relationship between the defendant’s use of physical force
and the victim’s submission to or engagement in the sexual
contact. 

. In Marshall, the state argued against
a causation requirement, asserting “that first-degree sexual abuse can be proved by showing an act of physical compulsion that was part of the circumstances surrounding

     6
       The “earnest resistance” requirement was removed due to its deleterious
effects on victims of sexual assault. Marshall, 

 (describing the legislative history of the 1999 amendment, including that it was “promoted by a group
of rape victim advocates and district attorneys, who argued that the requirement
of proving earnest resistance was unfair to, and actually could endanger, victims
of sexual assault”).
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the particular sexual contact at issue, without regard to
whether the act of compulsion had any causal relationship
to the sexual contact.” Id. at 216. The Supreme Court disagreed, expressly concluding that ORS 163.427 requires a
causal relationship between the defendant’s use of physical
force and the victim’s submission to or engagement in the
sexual contact. Id. at 217-18. It is not enough that “the sexual
contact be accompanied by some degree of forcible compulsion,” id. at 216 (emphasis in original), or that the “totality of
the circumstances” included some act of forcible compulsion,
id. at 214-15. The use of physical force must cause the victim
to submit to or engage in the sexual contact. Id. at 218.7
         Turning to the facts of this case, we reiterate that
this is a difficult case, but we ultimately agree with defendant that the evidence was insufficient to establish forcible
compulsion by physical force based on defendant’s grabbing
of the victim’s hips.
         When defendant approached the victim in the restroom, he could have grabbed her breasts directly. Instead,
he grabbed her hips, released them, and then grabbed her
breasts. Although the two contacts occurred in close succession, they did not occur simultaneously, and the first
was not a necessary predicate to the second. As such, this
case directly implicates the causation issue addressed in
Marshall.
         In Marshall, the Supreme Court explained that,
when a person engages in multiple nonconsensual contacts
with a victim, the fact that the person used physical force in
connection with one of the contacts is not enough to establish
forcible compulsion by physical force as to all subsequent
contacts. Id. at 219. Rather, the state must prove a causal
relationship as to each contact.
    “[C]ontrary to the state’s argument, a single act of forcible
    compulsion that accompanies multiple acts of sexual contact does not necessarily transform each of those sexual

    7
      Of course, a single threat or a single act of physical force may compel a victim to submit to or engage in multiple sexual contacts. Marshall, 

.
For example, a person could threaten to kill someone unless she engages in both
oral sex and sexual intercourse, or a person could hold someone down while he
engages in both sexual intercourse and sodomy.
754                                              State v. Beckner

   contacts into separate instances of first-degree sexual
   abuse. Instead, for each of the sexual contacts that the
   state charges, the state must rely on an act of ‘forcible compulsion’ that bears some causal relationship to the sexual
   contact: It must, in some sense, result in that particular
   sexual contact.”

 (emphasis in original).
         Applying that principle in Marshall, where the
defendant had been convicted of two counts of first-degree
sexual abuse based on two sexual contacts with the same
victim during the same criminal episode, the Supreme
Court concluded that there was sufficient evidence of forcible compulsion for that issue to go to the jury on the first
charge, but not on the second charge. 

. The first
count was based on the defendant having forced the young
victim’s hand down his pants to make her touch his penis,
while the second count was based on the defendant having grabbed the victim’s buttocks. 

 Although the defendant’s use of physical force to force the victim’s hand down
his pants was sufficient to establish forcible compulsion for
the first count, it was insufficient to establish forcible compulsion for the second count. 

 That is, even though the
defendant grabbed the victim’s buttocks after he had used
physical force against her, there was insufficient evidence
of a causal relationship between the two events, and so the
trial court erred in not granting the defendant’s motion for
judgment of acquittal on the second count. 

         In this case, the defendant’s first nonconsensual
contact with the victim—grabbing her hips—was not
charged as an act of sexual abuse, whether as a matter of
prosecutorial discretion or because the state did not believe
that it could prove that that was “sexual contact.” See ORS
163.305(6) (defining “sexual contact” as including “any touching of the sexual or other intimate parts of a person … for
the purpose of arousing or gratifying the sexual desire of
either party”); State v. Woodley, 

, 

 (1988) (recognizing that what constitutes an “intimate
part” is largely subjective). That procedural wrinkle complicates the forcible-compulsion analysis, in that it raises
the issue whether the first contact should be treated as nonconsensual sexual contact or just nonconsensual physical
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contact. The distinction is potentially relevant, because
sexual contact that involves only the amount of force necessary for the sexual contact itself is not an act of “physical
force” constituting forcible compulsion. Marshall, 

. Thus, in normal circumstances, if a person subjected
a victim to two different nonconsensual sexual contacts in
immediate succession—such as touching two different body
parts—the first contact would simply be its own act of sexual abuse and would not constitute “physical force” for purposes of the second contact.
         Ultimately, however, we conclude that the distinction is one without a difference as far as the outcome of this
case. Whether defendant’s grabbing of the victim’s hips is
viewed as nonconsensual sexual contact or just nonconsensual physical contact, the fact remains that defendant
engaged in two nonconsensual contacts with the victim that
were separate and distinct in nature, albeit close together
in time. Even assuming that the hip-grabbing qualified as
an act of physical force (rather than another sexual contact),
the trial court’s forcible-compulsion ruling depends on an
overly broad view of causation that is inconsistent with the
statute.
         In concluding that there was sufficient evidence
of forcible compulsion, the trial court wrongly focused on
whether the victim reasonably felt afraid and coerced during
her encounter with defendant. Any victim of nonconsensual
sexual contact may reasonably feel afraid and coerced, precisely because the contact is nonconsensual. See Marshall,

 (trial court erred in relying on evidence
that the victim did not want the contact as evidence of forcible compulsion). Nonconsensual sexual contact is criminal
regardless of whether it involves forcible compulsion. See
ORS 163.415(1) (subjecting another person to sexual contact
without the person’s consent is third-degree sexual abuse).
Forcible compulsion is an additional factor in some sexual
abuse cases, but the absence of forcible compulsion does not
mean that the victim was not afraid or that the victim was a
willing participant in the sexual abuse. The absence of evidence of forcible compulsion means only that the defendant
did not engage in a particular use of physical force or make
a particular type of threat as part of the crime.
756                                          State v. Beckner

         On appeal, the state presents a somewhat different theory of forcible compulsion than the trial court relied
on. The state argues that there was sufficient evidence of
a causal relationship between defendant’s grabbing of the
victim’s hips and the victim’s submission to the grabbing
of her breasts, because the victim testified that, as soon as
defendant got so close to her (less than six inches away), she
would have run out of the restroom if he had not put his
hands on her hips. But, because the victim was so shocked
by defendant grabbing her hips, she hesitated before fleeing
the restroom, which allowed time for defendant to grab her
breasts.
         There is a logical flaw in the state’s argument, in
that defendant did not need to grab the victim’s hips to keep
her there long enough to grab her breasts—he could have
just grabbed her breasts directly. Putting that aside, the
state’s view of causation is impermissibly broader than that
contemplated by Marshall.
         Any type of unwanted touching is potentially shocking and may cause a person to freeze as he or she considers
how best to negotiate the situation and get out of it. But,
relevant to forcible compulsion, the question, properly, is
not whether an act of unwanted touching gave the victim
pause and therefore created a window of opportunity for the
defendant to engage in a different act of unwanted touching.
The question is whether the defendant’s use of physical force
was such that it caused the victim to submit to or engage
in sexual contact. Marshall, 

 (what must
be compelled is the victim’s submission to or engagement
in the sexual contact); see, e.g., State v. Digesti, 

, 

 (2014) (there was sufficient
evidence to go to the jury on forcible compulsion, where the
48-year-old defendant used his foot to block the door and
physically struggled with the 15-year-old victim while he
sexually groped her and she tried unsuccessfully to escape).
         Consider a simplified hypothetical. If a person
approached another person, touched her hand and made eye
contact, and then put his hands on her breasts, the victim
might well not run away until the unlawful sexual contact,
no matter how alarmed she was by the initial touch. For a
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variety of reasons, it simply takes time to react in a confusing situation. But that does not make the touching of the
victim’s hand an act of physical force that compelled the victim to submit to sexual contact for purposes of first-degree
sexual abuse. The unwanted touching of the hand might
have had the practical effect of delaying the victim’s reaction to flee, but the touching of the hand alone would not be
enough to establish that the perpetrator used physical force
to compel the victim to submit to the sexual abuse. That
is, there is a difference between being startled by physical
contact into a slightly delayed reaction and being forcibly
compelled by physical force to submit to or engage in sexual
contact. Both situations involve crimes, but only the latter
involves first-degree sexual abuse by forcible compulsion by
physical force.

         Here, the victim never suggested that she felt compelled to submit to defendant touching her breasts because
defendant had previously grabbed her hips. To the contrary,
the victim fled the restroom as soon as defendant touched
her breasts. When defendant grabbed the victim’s hips,
she was “just so in shock” that she did not run out of the
restroom immediately. But, when he grabbed her breasts,
she overcame the shock and immediately turned, opened
the door, and ran away. On that record, there is no evidence
that the victim felt compelled to submit to the grabbing of
her breasts because of defendant’s earlier grabbing of her
hips. The possibility that she might have left the restroom
sooner if defendant had not shocked her by making physical
contact with her is not sufficient to establish causation for
forcible compulsion.

         “[T]o prove that a particular sexual contact was
first-degree sexual abuse, the state must prove not only that
the defendant subjected the victim to an act of forcible compulsion, but also that that act resulted in the sexual contact
that is the focus of the charge, in the sense that it compelled
the victim to submit to or engage in the contact.” Marshall, 

 (emphasis added). Here, the evidence was insufficient to establish that the victim felt compelled to submit
to the grabbing of her breasts because defendant grabbed
her hips. That two separate offensive touches occurred in
758                                            State v. Beckner

immediate succession is not enough to prove forcible compulsion by physical force.
         Finally, the state’s argument on appeal could be
read to suggest that, even if the evidence was insufficient
to establish forcible compulsion by threat and insufficient
to establish forcible compulsion by physical force, defendant could still be convicted of first-degree sexual abuse
because the “element of surprise,” defendant’s gesture, and
the hip-grabbing combined to prolong the encounter. To
the extent that the state means to make that argument,
we reject it as inconsistent with the statute. Although jury
concurrence is not required as to the type of compulsion
used, State v. Sullivan, 

, 

 (2012)¸ rev den, 

 (2014), the statute requires
a qualifying act of physical force or a qualifying threat.
ORS 163.305(1) (“ ‘Forcible compulsion’ means to compel by:
(a) Physical force; or (b) A threat [of the specified type].”). In
this case, the evidence was insufficient to establish either.
                        CONCLUSION
         The trial court erred in denying defendant’s motion
for judgment of acquittal on the charge of sexual abuse in
the first degree, ORS 163.427. As both defendant and the
state agree, the proper remedy is to reverse and remand
with instructions for the trial court to enter a conviction for
third-degree sexual abuse, ORS 163.415, instead of first-degree sexual abuse, ORS 163.427, and for resentencing.
See State v. Pittman, 

, 

 (2016)
(“We have authority under the Oregon Constitution to direct
entry of a lesser-included offense that we determine should
have been entered by the trial court.”).
        Reversed and remanded with instructions to enter
judgment of conviction for third-degree sexual abuse and for
resentencing.