57
Submitted January 30, 2020; affirmed March 17, 2021
STATE OF OREGON,
Plaintiff-Respondent,
v.
GORDON WESLEY MEAD, JR.,
Defendant-Appellant.
Clackamas County Circuit Court
16CR34432; A167567
484 P3d 366
Defendant appeals a judgment of conviction for, among other crimes, four
counts of first-degree sexual abuse, ORS 163.427. Defendant assigns error to the
trial court’s denial of his motions for judgment of acquittal (MJOA) on two of
those counts, arguing that the evidence is sufficient to show only two—not four—
instances where defendant touched the victim in a manner that constituted first-degree sexual abuse. The state argues that there is ample evidence in the record
to support conviction on all four counts of first-degree sexual abuse. Held: The
evidence—viewed in the light most favorable to the state—is sufficient to allow
a rational trier of fact to find that defendant had touched the victim four times,
each constituting a separate instance of first-degree sexual abuse under ORS
163.427; therefore, the trial court did not err in denying defendant’s MJOA.
Affirmed.
Michael C. Wetzel, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Eric Johansen, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kirsten M. Naito, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
TOOKEY, J.
Affirmed.
58 State v. Mead
TOOKEY, J.
Defendant was found guilty by a unanimous jury
verdict of first-degree rape (Counts 1 and 2), first-degree
sexual abuse (Counts 3, 4, 5, and 6), and first-degree sodomy (Count 7), for abusing his granddaughter, M, when she
was under the age of 12. Defendant appeals the resulting
judgment of conviction, arguing that the trial court erred
by denying his motions for judgment of acquittal (MJOA) on
Counts 5 and 6. For the reasons that follow, we conclude that
the trial court did not err in denying defendant’s MJOA.
We reject defendant’s other assignments of error as noted
below.1 Accordingly, we affirm.
“In reviewing a trial court’s denial of a motion for
judgment of acquittal, the court considers whether any
rational trier of fact, accepting reasonable inferences and
making reasonable credibility choices, could have found the
essential elements of the crime beyond a reasonable doubt.”
State v. Lupoli, 348 Or 346, 366,
234 P3d 117 (2010). “In so
doing, the court reviews the facts in the light most favorable to the state and draws all reasonable inferences in the
state’s favor.”
Id. In accordance with that standard, we state
the following facts.
M is defendant’s granddaughter. Between the ages
of five and ten, M visited defendant’s house about once a
month and “frequently” spent the night there. During that
period of time, defendant did things “of a sexual nature” to
1
Defendant also contends that the trial court erred by giving the jury a
nonunanimous jury instruction. Following the United States Supreme Court’s
ruling in Ramos v. Louisiana, 590 US ___,
140 S Ct 1390,
206 L Ed 583 (2020), the
Oregon Supreme Court explained that a nonunanimous jury instruction is not a
structural error that categorically requires reversal. State v. Flores Ramos,
367
Or 292, 319,
478 P3d 515 (2020). It also explained that where, as here, the jury
poll reveals that the verdict was unanimous for each count in question, the erroneous instruction is “harmless beyond a reasonable doubt.” State v. Kincheloe,
367 Or 335, 338,
478 P3d 507 (2020) (citing Flores Ramos,
367 Or at 320). In
this case, the trial court’s erroneous instruction was rendered harmless by the
unanimous verdicts; therefore, we decline to exercise our discretion to review
defendant’s unpreserved assignment of error. State v. Chorney-Phillips,
367 Or
355, 359,
478 P3d 504 (2020).
Additionally, defendant contends that the trial court erred in imposing
a 300-month sentence, pursuant to ORS 137.700 (2015), amended by Or Laws
2019, ch 635, § 10, for three offenses: first-degree rape, ORS 163.375 (Count 1);
first-degree rape, ORS 163.375 (Count 2); and first-degree sodomy, ORS 163.405
(Count 7). We reject that contention without further discussion.
Cite as 310 Or App 57 (2021) 59
M. When M was 12 years old, she told her mother about
those things. As a result, defendant was charged with,
among other offenses, two counts of first-degree rape, ORS
163.375 (Counts 1 and 2); four counts of first-degree sexual
abuse, ORS 163.427 (Counts 3, 4, 5, and 6); and one count of
first-degree sodomy, ORS 163.405 (Count 7).
At defendant’s trial, M testified that she was “[a]bout
six or seven” the first time “it” happened. M was in the basement with defendant. M remembers a nearby TV was off,
“but another time it was on.” Defendant took off his pants
and underwear and “had [M] touch his penis” with her hand,
using a “rubbing” kind of touch. Defendant then had M take
off all her clothes. M then laid on a couch, where defendant
“licked [M’s] vagina.” While M was still lying on the couch,
defendant “got on top of [M],” and she felt defendant’s penis
“on the outside” of her vagina, “probably on … the clitoris.”
Defendant was moving “back and forth,” and M “could feel
his stomach on” hers. The incident was interrupted because
“someone was coming home at the time,” so M and defendant “got dressed immediately.”
After M testified, the state played a DVD recording
of M’s forensic interview with CARES, a child abuse assessment center. M was 12 years old at the time of that interview.
M explained that “it” had been “going on for … a while,”
and that “any time [she] went over there for, like, a couple
months, it would happen.” The CARES interviewer specifically asked M what she remembered about the last time it
happened. M responded that “the thing about the last time
[is] … he was having sex with me.” By “sex,” M clarified
that she meant “where the male genitalia goes inside the
female genitalia.” M further clarified that by “male genitalia” she meant “penis,” and by “girl’s genitalia” she meant
“vagina.”
M explained that the last time took place “down in
the basement.” M recalled that the TV was on this time. M
described that her “clothes were all the way off,” and that
defendant “pulled his pants and underwear down.” While
defendant sat on a couch and M knelt on the ground, defendant “grabbed” M’s hand and had her rub his genitalia. M
also recalled that defendant got “on top of me,” and “he moved
60 State v. Mead
up and down.” M “was crying” and “told [defendant] to stop,”
and that “it’s not right.” Defendant said “Okay. Don’t tell
anyone because I’ll get in trouble.” Defendant also told M
to “[j]ust forget about it.” Defendant “just got off” of M, but
M’s “vagina felt weird,” like it “tingles.” Afterward, M and
defendant “just watched TV.” M told the CARES interviewer
she believed that sex had happened “more than once.”
Defendant moved for judgment of acquittal on
Counts 3, 4, 5, and 6, asserting that the evidence established only two—not four—instances of touching constituting sexual abuse under ORS 163.427. The state responded
that defendant had touched M in two ways—hand to penis
and vagina to penis—and that both ways of touching had
occurred in each of two separate incidents: first in the incident M described in her live testimony and again in the incident M described in her CARES interview. After reviewing
the CARES interview, the trial court determined that the
state’s “argument is compelling” and denied defendant’s
MJOA as to counts 3, 4, 5, and 6.
On appeal, defendant contends that the trial court
erred when it denied defendant’s MJOA on Counts 5 and
6, because the evidence is sufficient to show only two—not
four—instances where defendant touched M in a manner that constituted first-degree sexual abuse under ORS
163.427. In response, the state argues that “there was
ample evidence to support all four convictions,” and that the
evidence adduced at trial shows that “defendant forced M
to touch his penis on more than one occasion and that he
touched her vagina with his penis on at least two occasions.”
For the reasons that follow, we conclude that the
facts—viewed in the light most favorable to the state—
would allow a rational trier of fact to find that defendant had
touched M four times, each constituting a separate instance
of first-degree sexual abuse under ORS 163.427.
Under ORS 163.427(1)(a)(A), a person commits first-degree sexual abuse if the person subjects a victim under 14
years of age to sexual contact. “Sexual contact” means “any
touching of the sexual or other intimate parts of a person or
causing such person to touch the sexual or other intimate
Cite as 310 Or App 57 (2021) 61
parts of the actor for the purpose of arousing or gratifying
the sexual desire of either party.” ORS 163.305(6).
Here, M was under 14 years of age during the
events in question. At trial, M testified that, the first time
“it” happened, defendant had her “touch his penis” with her
hand, using a “rubbing” kind of touch (hand to penis contact), after which defendant “got on top of” M and she felt
defendant’s penis “on the outside” of her vagina, “probably
on … the clitoris” (vagina to penis contact). The TV was
off, and the incident was interrupted when someone else
came home. That evidence is sufficient for a rational trier
of fact to find two instances of sexual contact constituting
first-degree sexual abuse: one hand to penis contact and one
vagina to penis contact.
Additionally, in her CARES interview, M described
that, the last time “it” happened, defendant “grabbed” M’s
hand and had her rub his genitalia (hand to penis contact), and that defendant “was having sex with” her (vagina
to penis contact). The TV was on, and the incident ended
when M cried and “told [defendant] to stop,” and that “it’s
not right.” Defendant stopped, told M not to “tell anyone
because I’ll get in trouble,” and then M and defendant “just
watched TV.” That evidence is sufficient for a rational trier
of fact to find two separate and additional instances of sexual contact constituting first-degree sexual abuse: a second
hand to penis contact and a second vagina to penis contact.
In light of the foregoing, a rational trier of fact
could find that defendant touched M in four instances, each
of which constituted first-degree sexual abuse under ORS
163.427. We therefore conclude that the trial court did not
err when it denied defendant’s MJOA with respect to Counts
5 and 6. Accordingly, we affirm.
Affirmed.
