State v. Nygaard

                                       793

Argued and submitted April 30, 2019; reversed and remanded for resentencing,
                    otherwise affirmed April 29, 2020


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    RICHARD KARL NYGAARD,
                        Defendant-Appellant.
                    Lincoln County Circuit Court
                        16CR40011; A164455
                                   

    Defendant was convicted of several crimes, including one count of first-degree unlawful sexual penetration (Count 7) and one count of attempted first-degree rape (Count 8). On appeal, defendant assigns error both to his convictions
on those counts and to the 200-month sentence the court imposed on Count 7.
With respect to the convictions, defendant contends that the state did not prove
that he used “forcible compulsion” in sexually assaulting the victim. With respect
to sentencing, defendant contends that the trial court erred by imposing a sentence longer than either the mandatory minimum sentence under ORS 137.700
or the maximum sentence permissible under the sentencing guidelines. He also
contends that the court erred by sentencing defendant without first ordering a
presentence report. The state concedes that, given the circumstances of this case,
the trial court erred in imposing the 200-month sentence on Count 7 and in failing to order a presentence report. Held: The trial court did not err in determining
that defendant used forcible compulsion in his assault on the victim. However,
the Court of Appeals accepted the state’s concessions regarding the trial court’s
error in imposing a sentence longer than either the mandatory minimum sentence under ORS 137.700 or the maximum guideline sentence and in failing to
order a presentence report.
    Reversed and remanded for resentencing; otherwise affirmed.



    Thomas O. Branford, Judge.
   Erik Blumenthal, Deputy Public Defender, argued the
cause for the appellant. Also on the briefs was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   E. Nani Apo, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
  Before DeHoog, Presiding Judge, and Aoyagi, Judge, and
Hadlock, Judge pro tempore.
794                                  State v. Nygaard

  HADLOCK, J. pro tempore.
   Reversed and remanded for resentencing; otherwise
affirmed.
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         HADLOCK, J. pro tempore
         Defendant was charged with multiple crimes
including first-degree unlawful sexual penetration (Count 7)
and attempted first-degree rape (Count 8). As set out in
more detail below, the state alleged that defendant committed those crimes “by forcible compulsion.” Following a
bench trial, the trial court found defendant guilty of Counts
7 and 8, as well as several other counts not at issue here.
The court imposed a sentence that included 200 months of
incarceration on Count 7—twice the mandatory minimum
term under ORS 137.700 (Measure 11)—and 38 months of
incarceration on Count 8, to be served concurrently with
the prison term imposed on Count 7.1 On appeal, defendant
challenges his convictions on Counts 7 and 8, arguing that
the state did not prove that he used “forcible compulsion”
in sexually assaulting the victim. We reject that argument
for the reasons set out below. Defendant also contends that
the trial court erred by imposing the 200-month sentence
on Count 7 and by sentencing him without having first
ordered a presentence report. The state concedes that, given
the circumstances of this case, the trial court erred in those
two ways. As discussed below, we accept the state’s concessions. Accordingly, we affirm defendant’s convictions, but we
reverse and remand for resentencing.
         For purposes of this appeal, the material facts are
undisputed. The victim in this case suffered from a medical
condition that left her unable to stand or walk, and she used
a motorized wheelchair. She had no ability to move her legs
or to “try to keep [her] legs open or closed.” She had a caregiver who, among other things, transferred her from bed to
wheelchair in the morning and back into bed in the evening.
The victim had some use of her hands; for example, she
could feed herself, but she could not cook meals. However,
the victim had only limited use of her arms and, while in
bed, she was unable to move from side to side. She wore an
adult diaper.
         One night, defendant entered the victim’s apartment
and went into her bedroom. The victim repeatedly ordered

    1
       The legislature amended ORS 137.700 in 2019. Or Laws 2019, ch 635, § 10.
All citations to ORS 137.700 in this opinion are to the 2015 version of the statute.
796                                           State v. Nygaard

defendant to leave, but he did not. Defendant took off his
pants, got onto the victim’s bed, and tried to put his penis in
her mouth. Although defendant’s penis touched the victim’s
face, she was able to turn her head to the side and keep her
mouth closed, so defendant’s penis, which was not erect, did
not go into her mouth. Defendant then pulled down the victim’s diaper, grabbed her breast, and inserted a finger into
her vagina. To accomplish that, defendant had to move the
victim’s legs. Defendant also tried to insert his penis into
the victim’s vagina, but he failed because he was not erect.
Because of her medical condition, the victim was not able to
fight off defendant or even attempt to do so. Defendant left
after a few hours.
        The next morning, the victim told her caregiver that
she had been raped, and the caregiver called police, who
arranged for the victim to be taken to a hospital. The nurse
who performed the examination testified that the victim’s
legs were very stiff and could not move in a way to allow a
speculum examination without it being “too uncomfortable”;
accordingly, the nurse examined the victim only externally.
          At trial, after the state presented evidence supporting the facts outlined above, defendant moved for a judgment of acquittal on certain charges, including Counts 7
and 8, arguing that there was no evidence that he had used
“any physical force … beyond the touching that occurred.”
Because of that absence of evidence, defendant argued, a
factfinder could not find that he had committed the crimes
by means of “forcible compulsion,” as the state had alleged.
In response, the state argued that “forcible compulsion”
had occurred because defendant “had to use force in order
to commit the act because of her condition.” The trial court
denied the motion as to Counts 7 and 8 on the ground that
defendant “moved [the victim’s] legs,” which, “in the context
of this case, … is physical force.” The court determined that
the physical force occurred when defendant “had to move
her legs and pull her diaper down”; it further explained that
“the only way [the victim] could be put in a position where
she could be subjected to digital penetration or penile penetration would be someone moved her legs so that it could be
done,” which “constitutes the physical force in the context
of all the facts of this case.” Sitting as factfinder, the court
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then found defendant guilty of multiple charges, including
Counts 7 and 8.
         At sentencing, the state asked the court “to sentence [defendant] as a Measure 11” on Count 7 and to apply
a sentence-enhancement factor to double the mandatory-minimum sentence on that count. Defendant urged the
court to “not find substantial and compelling reasons to go
beyond” a Measure 11 sentence, but he did not argue that
the court lacked authority to upwardly depart. The trial
court noted that the mandatory minimum sentence under
ORS 137.700 would be “100 months” and, based on the victim’s vulnerability, it doubled that sentence to 200 months.
On Count 8, the court doubled the presumptive 19-month
sentencing-guidelines term, also based on its vulnerablevictim finding.
         On appeal, defendant first challenges his convictions on Counts 7 and 8, in which the state alleged that he
used forcible compulsion when he penetrated the victim digitally (Count 7) and when he attempted to rape her (Count 8).
Defendant contends that the record does not include evidence supporting a finding that he used “forcible compulsion”
to accomplish that sexual contact. Defendant’s argument
stems from the statutory definition of “forcible compulsion,” which, as relevant here, is defined to mean “to compel by … [p]hysical force.” ORS 163.305(1)(a).2 Defendant
also relies on State v. Marshall, 

, 

 (2011), in which the Supreme Court held that a person uses “physical force” to compel a sexual act only when
the person uses force “greater than or qualitatively different from the simple movement and contact that is inherent in the action of touching an intimate part of another.”
Defendant contends that he did not use any physical force
beyond that inherent in the achieved and attempted sexual
contact. In particular, he argues that his act of moving the
victim’s legs so he could contact her vagina “was inherent
to defendant’s conduct” because of her “very unusual and
unfortunate physical condition.” Put differently, defendant

    2
      Although the legislature amended ORS 163.305 in 2017, the definition of
“forcible compulsion” was not changed. Or Laws 2017, ch 318, § 2; Or Laws 2017,
ch 634, § 17. Accordingly, this opinion cites the current version of that statute.
798                                         State v. Nygaard

argues that, because somebody would have had to move the
victim’s legs to engage in vaginal sex even if she consented
to that contact, the movement was inherent to the sexual
act and defendant’s conduct in moving the victim’s legs cannot be considered forcible compulsion. In response, the state
contends that, “even assuming that the force defendant
used was a necessary predicate to the sexual conduct, it
does not follow that the force was inherent in that conduct.”
(Emphasis in state’s brief.)
         We agree with the state. The Supreme Court
explained in Marshall that, to constitute “forcible compulsion,” the physical force used by the defendant “must be
greater than or qualitatively different from the simple movement and contact that is inherent in the action of touching an intimate part of another.” 

. The force
also “must be sufficient to ‘compel’ the victim, against the
victim’s will, to submit to or engage in the sexual contact.”

. That is, there must be “a causal connection
between the ‘sexual contact’ and ‘forcible compulsion’ elements.” 

. However, the force need not be violent
or dominating. 

. Significantly, “the force that is
sufficient to ‘compel’ one person to submit to or engage in a
sexual contact against his or her will may be different from
that which is sufficient to compel another person to do so.”

.
          In Marshall, the Supreme Court applied those principles in determining that the evidence was sufficient to support a finding that one act by the defendant involved forcible
compulsion, although it was not sufficient to support such
a finding with respect to another act. The Marshall defendant, an adult friend of the victim’s mother, crawled into bed
with the victim, a 14-year-old girl. Among other things, the
defendant “ ‘grabbed’ the victim’s hand and ‘forced’ it down
the front of his pants, placing it on his erect penis.” 

. Later, after the victim jerked her hand away, the defendant rubbed the victim’s back and “slipped his hand down
the back of her sweatpants and put it on her buttocks” before
the victim scooted away. 

.
         The Supreme Court held that the evidence was sufficient to support a finding that the defendant caused the
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victim to touch his penis “by using some degree of physical force, different in degree or kind from the simple movement and contact inherent in the act of the victim touching
defendant’s penis.” Id. at 227-28. The court also held that
a factfinder could determine that that force compelled the
victim to engage in the sexual contact, given her age, the
physical setting, and relationship between her mother and
the defendant. Id. at 228. That is, “the jury reasonably could
conclude that the physical force that defendant exerted was
sufficient to cause a person of that age and in those circumstances to submit to the physical contact against her will.”
Id. By contrast, the record did not support a finding that the
defendant had used physical compulsion when he touched
the victim’s buttocks, as no evidence suggested “that the
second touching itself involved any greater or different force
than was inherent in that particular sexual contact,” which
lasted only a few seconds. Id.
        Thus, the Supreme Court emphasized in Marshall
that sexual touching itself generally will not amount to forcible compulsion, unless that touching encompasses force,
such as “a violent groping or injurious sexual assault.” Id. at
226. Instead, the physical force must be different from “the
simple movement and contact inherent” in the sexual contact, and there must be a causal relationship between that
force and the contact that results. Id. at 227-28.
         Here, defendant engaged in criminal sexual contact when he penetrated the victim’s vagina and when he
attempted to rape her. Defendant’s act of forcibly moving the
victim’s legs to make that sexual contact possible might have
been a necessary predicate to the contact, given the circumstances, but it was not inherent “in the action of touching an
intimate part of another”—here, the victim’s vagina—which
is the only kind of force that Marshall holds does not count
for the purpose of determining whether a defendant used
“forcible compulsion” when committing a sex crime. 

.
        In arguing otherwise, defendant seeks to broaden
the meaning of “inherent” to encompass any act that is necessary to allow the defendant to engage in sexual conduct
toward the victim. That argument cannot be squared with
800                                         State v. Nygaard

Marshall’s holding that the defendant in that case used forcible compulsion when he forced the victim’s hand down his
pants and placed it on his penis. In some sense, that physical
force was a necessary predicate to the contact itself, which
would not have occurred if the defendant had not manipulated the victim’s hand. Nonetheless, the Supreme Court
concluded that a jury could find that that action differed
from “the simple movement and contact inherent in the act
of the victim touching defendant’s penis,” and, because that
action resulted in the victim touching the defendant’s penis,
it constituted “forcible compulsion.” 

.
         The circumstances are not meaningfully different
here. Just as the defendant in Marshall used forcible compulsion when he manipulated the hand of the victim in that
case to make it contact his penis, defendant here used forcible compulsion when he manipulated the victim’s legs so
he could contact her vagina. Nor are we persuaded that the
evidence was insufficient to establish “forcible compulsion”
simply because the victim could not have moved her legs
without defendant’s assistance, had she consented to the
sexual contact. The point is that she did not consent, either
to the sexual contact or to defendant moving her legs. To the
contrary, defendant subjected the victim both to unwanted
sexual contact and to the forcible movement of her legs—
which the testimony indicates would have been very uncomfortable for her and, more importantly, against her will—to
make that contact possible. The fact that a different victim
might not have felt “compelled” by the moving of her legs is
immaterial. See Marshall, 

 (“[T]he force that is
sufficient to ‘compel’ one person to submit to or engage in a
sexual contact against his or her will may be different from
that which is sufficient to compel another person to do so.”).
On this record, the evidence was sufficient for the issue of
“forcible compulsion” to go to the factfinder. Accordingly, the
trial court did not err when it denied defendant’s motion for
judgment of acquittal on Counts 7 and 8.
        Defendant’s remaining assignments of error relate
to sentencing. In his second assignment of error, defendant
argues that the trial court erred “when it found the ‘victim’s
particular vulnerability’ [to be an] aggravating sentence-enhancement factor,” which the court used as a basis to
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double the prison terms on Counts 7 and 8. Defendant contends that the evidence does not support a finding that he
was aware of the victim’s particular vulnerability. We reject
that argument without published discussion.
          In his third assignment of error, defendant makes
an unpreserved argument that the trial court erred when it
imposed a 200-month incarceration term on Count 7, first-degree unlawful sexual penetration. Under ORS 137.700
(2)(a)(N), that conviction carries a mandatory-minimum
sentence of 100 months of incarceration. Defendant notes,
correctly, that when a statute—like ORS 137.700—requires
a court to impose a determinate sentence, “ ‘the sentence
imposed shall be the determinate sentence or the sentence
as provided by the [sentencing guidelines], whichever is
longer.’ ” (Quoting ORS 137.637 (emphasis in defendant’s
brief).); see also OAR 213-009-0001(1) (“If a mandatory
prison sentence is required or authorized by statute, the
sentence imposed shall be that determinate sentence or the
sentence under [the sentencing guidelines] rules whichever
is longer.”); State v. Langdon, 

, 

(2000) (“Under ORS 137.637, when a statute mandates a
sentence of imprisonment, the trial court must impose that
mandatory sentence or the sentence prescribed under the
sentencing guidelines, whichever is longer.”).
         Here, defendant observes, the trial court determined that Count 7 would have been classified as 9-H under
the sentencing guidelines and, absent ORS 137.700, the
conviction on that count would have carried a maximum
38-month presumptive sentence. Under the guidelines, a
sentence-enhancement factor therefore could have resulted
in a maximum upward-departure term of 76 months. See
OAR 213-008-0003(2). Because the ORS 137.700 mandatory-minimum sentence for the crime is 100 months, which
exceeds the maximum possible departure sentence under
the guidelines, defendant argues that no further upward
departure is permissible. Thus, defendant concludes, the
trial court erred by imposing a prison term of more than
100 months on Count 7. Although defendant did not make
that argument in the trial court, he urges us to address
the error as plain on the record and as meriting appellate
review because of its gravity, which requires defendant
802                                                       State v. Nygaard

to serve significantly more prison time than he otherwise
would.
        The state does not challenge defendant’s analysis,
and it concedes that the trial court plainly erred when
it imposed a sentence on Count 7 that exceeded both the
mandatory-minimum sentence of 100 months and the maximum upward-departure sentence that the court could have
imposed pursuant to the sentencing guidelines. The state
also concedes that we should exercise our discretion to correct the error. We agree with the parties. The trial court
plainly erred when it imposed a sentence that exceeded
both the mandated statutory minimum required by ORS
137.700(2)(a)(N) and the maximum sentence permissible
under the guidelines. We exercise our discretion to correct
the error, given its gravity and our assessment that correction serves the interests of justice. Accordingly, we reverse
and remand for resentencing.
         In a supplemental assignment of error, defendant
makes an unpreserved argument that the trial court failed
to order a presentence report as generally is required under
ORS 144.791 when a defendant is convicted of a felony sexual offense and, as happened here, a party advocates for a
departure sentence.3 The state concedes that the trial court
plainly erred by not ordering a presentence report under
the circumstances of this case, and we agree. The court will
have an opportunity to order such a report upon remand
either upon motion (under ORS 144.791(1)) or if a departure

   3
       ORS 144.791 provides, in pertinent part:
       “(1) When a person is convicted of a felony, including a felony sexual
   offense, the sentencing court may order a presentence report upon its own
   motion or upon the request of the district attorney or the defendant.
      “(2) The sentencing court shall order a presentence report if the defendant is convicted of a felony sexual offense unless:
       “(a) The defendant, as part of the same prosecution, is convicted of aggravated murder;
       “(b) The felony sexual offense requires the imposition of a mandatory
   minimum prison sentence and no departure is sought by the court, district
   attorney or defendant; or
       “(c) The felony sexual offense requires imposition of a presumptive
   prison sentence and no departure is sought by the court, district attorney or
   defendant.”
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sentence is sought on any count that would trigger the mandatory requirement for a report under ORS 144.791(2).
         Reversed and remanded for resentencing; otherwise affirmed.