125
Submitted November 5, affirmed December 23, 2020, petition for review denied
April 22, 2021 (368 Or 37)
STATE OF OREGON,
Plaintiff-Respondent,
v.
DALE ARNOLD BUCKENDAHL,
Defendant-Appellant.
Multnomah County Circuit Court
17CR79664; A170286
480 P3d 325
For placing his hand under the skirt of a third-grade student and rubbing
her upper thigh up to her underwear, defendant was convicted of one count of
first-degree sexual abuse, ORS 163.427. At sentencing, defendant argued that
the imposition of the mandatory 75-month sentence under ORS 137.700(2), as
applied to him, would be unconstitutionally disproportionate in violation of
Article I, section 16, of the Oregon Constitution. The trial court noted evidence of
defendant’s past misconduct with other students and defendant’s role as a teacher
before rejecting defendant’s argument and imposing the mandatory sentence.
Defendant appeals, assigning error to the trial court’s imposition of the sentence and renewing his contention that it is unconstitutionally disproportionate.
Held: The trial court did not err in imposing the mandatory sentence. Given the
age of the victim, the harm she suffered, defendant’s position as a teacher, and
the evidence of defendant’s past misconduct, the sentence in this case was not “so
disproportionate, when compared to the offense, so as to ‘shock the moral sense’
of reasonable people.” State v. Rodriguez/Buck, 347 Or 46, 58,
217 P3d 659 (2009).
Affirmed.
Kelly Skye, Judge.
Bear Wilner-Nugent filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Daniel Norris, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and James, Judge, and
Haselton, Senior Judge.
LAGESEN, P. J.
Affirmed.
126 State v. Buckendahl
LAGESEN, P. J.
Defendant appeals a judgment of conviction for one
count of first-degree sexual abuse, ORS 163.427. He assigns
error to the trial court’s imposition of the mandatory
75-month sentence under ORS 137.700(2)(a)(P) (2019),1 contending that, as applied to him, it is unconstitutionally disproportionate in violation of the proportionality provision of
Article I, section 16, of the Oregon Constitution. Reviewing
for legal error, State v. Ryan, 361 Or 602, 614-15,
396 P3d
867 (2017), we affirm.
Defendant’s conviction resulted from his conduct of
placing his hand under the skirt of a third-grade girl and
rubbing her upper thigh up to her underwear. Defendant
was a substitute teacher for the victim’s class at the time.
As described by the victim at trial, the incident involved
defendant rubbing her leg, placing his hand under her skirt
and under the shorts that she was wearing underneath
her skirt. Then, according to the victim, defendant put his
hand into her underwear and began to “drag his fingers
around [her] vagina.” The incident took place in the classroom while students were sitting around a table reading;
defendant’s conduct took place under the table. To try to get
away from defendant’s touch, the victim “tried to move and
reposition” herself, but defendant left his hand in place. The
victim eventually asked if she could “go get water or go to
the bathroom or something” to get away but was not able to
do so. The victim “kept moving” and defendant eventually
“just took his hand out.” Defendant’s touching of the victim’s
thigh “didn’t feel right” to her; it felt “intimate” and “too
personal.”
The victim did not disclose defendant’s conduct
to adults right away. A few years later, when she was in
sixth grade, she began cutting herself. During a counseling
1
At the time of sentencing, the mandatory sentence for first-degree sexual
abuse was located in ORS 137.700(2)(a)(P). As a result of amendments, it is now
located in ORS 137.700(2)(a)(Q). See Or Laws 2019, ch 635, § 10. The mandatory sentence for first-degree sexual abuse remains the same, and because the
amendment does not affect our analysis, we refer to the current version of the
statute in this opinion.
Cite as 308 Or App 125 (2020) 127
session with a school counselor, she told the counselor about
defendant’s conduct.2
Based on the classroom incident, the state charged
defendant with two counts of first-degree sexual abuse.
Count 1 alleged that defendant committed sexual abuse by
touching the victim’s vagina; Count 2 alleged that defendant committed sexual abuse by touching the victim’s leg.
The case was tried to a jury, which acquitted defendant on
Count 1 and convicted on Count 2.
At sentencing, defendant argued that the mandatory 75-month sentence under ORS 137.700 would be
unconstitutionally disproportionate as applied to him. The
trial court rejected that argument. Noting that the critical
inquiry is “whether a sentence is so disproportionate when
compared to the offense so as to shock the moral sense of
reasonable people,” the court focused on the particular circumstances of the conduct of which the jury found defendant
guilty:
“We’re not just looking at a touching of a leg in a vacuum,
we’re looking at the touching of a leg in the context of a
nine-year-old school child, placing his hand underneath
her skirt and, you know, by a teacher in a school.”
The trial court also noted that, although defendant
did not have a prior criminal history, defendant had been
the subject of an investigation by the Teacher Standards
and Practices Commission (TSPC) for having “inappropriate relations with students.”3 The TSPC proceeding led to a
stipulated suspension and probation for defendant. Although
the court had excluded evidence of those prior incidents from
defendant’s trial, it noted that it had heard “quite a bit of testimony” about those incidents, and that those incidents were
“influential” in its determination that defendant’s sentence
2
The evidence at trial reflected that the victim told some peers about the
incident shortly after it occurred but, as the victim acknowledged, she only
told them that defendant had touched her leg and did not tell them that he had
touched her vagina.
3
During pretrial proceedings, the trial court heard extensive evidence of
defendant’s past misconduct with other students. The court ultimately concluded
that that evidence should not be included for the jury’s consideration, but it took
that evidence into account when considering whether defendant had shown that
his sentence was unconstitutionally disproportionate as applied.
128 State v. Buckendahl
was not unconstitutional. The court observed, based on the
evidence that it had heard, that the TSPC “may not have
caught this one correctly.” That evidence that the court
received included testimony from the women who had been
involved in the incidents that led to the investigation about
how defendant had touched them when they were in middle
school. One woman testified that defendant hugged her in a
way that made her uncomfortable and that the hug “ended
in him kind of running his hand down my back and touching my butt.” Another woman testified that defendant had
tickled her inappropriately and, one time, had her lay down
so he could draw an outline of her body, during which defendant “kind of paused at my groin area.”
On appeal, defendant reiterates the argument that
he made below. He emphasizes that his conduct involved
touching the victim’s leg, and his lack of criminal history,
contending that, under those circumstances, the legislatively
prescribed sentence is disproportionate under Article I, section 16. In so doing, he urges us to conclude that his conduct
is much like that at issue in State v. Rodriguez/Buck, 347 Or
46, 58, 79,
217 P3d 659 (2009), in which the Supreme Court
held that the ORS 137.700 sentence for first-degree sexual
abuse was unconstitutional as applied to the defendants in
that case, given the nature of the sexual contact at issue. We
disagree that this case involves the “rare circumstances”
that allow for the conclusion that the legislature’s choice of
sentence is disproportionate. State v. Wheeler,
343 Or 652,
670,
175 P3d 438 (2007).
Under the Supreme Court’s case law, as the trial
court correctly recognized, the application of a legislatively specified penalty violates the proportionality clause
of Article I, section 16, only if the penalty “is so disproportionate, when compared to the offense, so as to ‘shock the
moral sense’ of reasonable people.” Rodriguez/Buck, 347 Or
at 58. Three factors, among possibly others, bear on that
determination:
“(1) a comparison of the severity of the penalty and the gravity of the crime; (2) a comparison of the penalties imposed
for other, related crimes; and (3) the criminal history of the
defendant.”
Cite as
308 Or App 125 (2020) 129
Id. For purposes of this analysis, “criminal history includes
not only prior convictions, but also arrests, unadjudicated
charges, and other uncharged misconduct.” State v. Sokell,
273 Or App 654, 658,
362 P3d 751 (2015) (Sokell I), aff’d,
360
Or 392,
380 P3d 975 (2016) (Sokell II).
Although defendant argues otherwise, his touching
of the victim’s leg does not resemble the type of touching that
the Supreme Court concluded was not particularly severe
in Rodriguez/Buck. Much as was the case in Sokell II, in
which the Supreme Court rejected a similar argument that
the defendant’s conduct of stroking the eight-year-old victim “on the buttocks and hips for several minutes, over her
clothing,” was not severe because, in the defendant’s view, it
was like the conduct in Rodriguez/Buck, this case involved
the stroking of nine-year-old girl on her upper leg. Sokell II,
360 Or at 393, 396. For reasons similar to those articulated
by the Supreme Court in Sokell II, this conduct is grave:
“Initially, we disagree with defendant’s assessment of
the gravity of his current offense. Although Rodriguez/
Buck, like this case, involved convictions for first-degree
sexual abuse, and this court held that mandatory minimum sentences imposed pursuant to ORS 137.700 were
unconstitutionally disproportionate under the circumstances there, that case does not stand for the proposition
that first-degree sexual abuse should be regarded as a
minor sex offense. The convictions in those cases involved
fleeting touching—not including fondling—of young teens
over their clothing. The court noted that the offense of
first-degree sexual abuse encompasses a ‘wide swath of
conduct’ that can result in varying degrees of harm. The
court contrasted the defendants’ conduct in those cases to
circumstances in which there was touching of a younger
child or where there was deliberate or persistent rubbing
or fondling.
“Defendant’s conduct in this case bears little resemblance to the conduct at issue in Rodriguez/Buck. While
it is possible that, under some circumstances, first-degree
sexual abuse might not cause extremely serious harm to a
victim, that is not the circumstance here. Defendant’s victim was a young child whom he targeted while she was in
a public library, then fondled on the buttocks and hips for
several minutes.”
130 State v. Buckendahl
Id. at 397 (quoting Rodriguez/Buck,
347 Or at 69-70 (internal
citations omitted)). In fact, defendant’s conduct here appears
graver than that which the court deemed grave in Sokell II:
Defendant reached under the nine-year-old victim’s skirt,
did so in a classroom, a place that should have been safe
for her, while defendant was a teacher, someone she should
have been able to trust not to harm her. And, as in Sokell II,
there is evidence in the record that the victim was traumatized by the incident.
Id.
The other Rodriguez/Buck factors likewise support
the determination that defendant’s case does not present
the rare circumstances that would allow for the conclusion
that the statutory sentence is unconstitutionally disproportionate. Regarding defendant’s criminal history, although
defendant did not have previous convictions for sexual
conduct with children, he did have uncharged misconduct
that the trial court took evidence on at a pretrial hearing.
Sokell I, 273 Or App at 658 (noting that criminal history for
this purpose includes uncharged misconduct). Specifically,
defendant was professionally disciplined for inappropriate
conduct with young students and that conduct included
inappropriately touching middle school girls in ways that
made them uncomfortable. Yet, as the trial court noted,
having been disciplined for such conduct, defendant nonetheless persisted in it by touching the victim the way that
he did. This undercuts the conclusion that the legislatively
prescribed sentence is too long given the circumstances of
this particular defendant.
Finally, regarding the penalties for other comparable offenses, we again echo the Supreme Court in Sokell II:
“Suffice it to say that the penalties for committing physical sexual offenses against young child victims are uniformly significant under Oregon law, generally carrying
mandatory minimum sentences under ORS 137.700 and
being ranked in the highest three crime categories under
the Oregon Sentencing Guidelines.”
360 Or at 399.
Affirmed.
