State v. Gilbreath

                                       724

                   Submitted March 8, affirmed April 21, 2021


                      STATE OF OREGON,
                       Plaintiff-Respondent,
                                 v.
                  JOHN PATRICK GILBREATH,
                      Defendant-Appellant.
                 Washington County Circuit Court
                      18CR39667; A170579
                                   

    Defendant appeals a judgment of conviction for first-degree unlawful sexual
penetration, ORS 163.411. On appeal, defendant assigns error to the trial court’s
denial of his motion for judgment of acquittal and to its interpretation of ORS
163.411. Both assignments ultimately reduce to a single question: whether, under
ORS 163.411, conviction for first-degree unlawful sexual penetration requires
proof that a defendant acted with a “sexual or injurious intent.” Defendant
argues that it does. The state argues that it does not. Held: After construing
ORS 163.411 according to the methodology set out in State v. Gaines, 

,

 (2009), the Court of Appeals concluded that under ORS 163.411, a
conviction for first-degree unlawful sexual penetration does not require proof of
sexual or injurious intent. Given that interpretation, in this case, viewing the
facts in the light most favorable to the state, a rational factfinder could conclude
beyond a reasonable doubt that defendant unlawfully sexually penetrated the
victim.
    Affirmed.



    Andrew Erwin, Judge.
   Jedediah Peterson and O’Connor Weber LLC filed the
brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher A. Perdue, Assistant
Attorney General, filed the brief for respondent.
  Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
    TOOKEY, J.
    Affirmed.
Cite as 

 (2021)                                725

         TOOKEY, J.
         Defendant was convicted of first-degree unlawful
sexual penetration, ORS 163.411 (Count 1), for digitally
penetrating the vagina of three-year-old victim, S, while
applying diaper cream. On appeal, defendant advances two
assignments of error: (1) that the trial court erred when
it denied defendant’s motion for judgment of acquittal on
Count 1, and (2) that the trial court erred when it adopted
an incorrect interpretation of ORS 163.411. Both assignments, as presented by defendant, ultimately reduce to a
single issue: whether, under ORS 163.411, conviction for
first-degree unlawful sexual penetration requires proof that
a defendant acted with a “sexual or injurious intent.” We
conclude that it does not; accordingly, we affirm.
        When our “review of a ruling on a motion for a
judgment of acquittal centers on the meaning of the statute
defining the offense, the issue is one of statutory construction that we review for legal error.” State v. McQueen, 

, 

 (2020) (citation and internal
quotation marks omitted). After construing the statute, we
review the facts in the light most favorable to the state to
“determine whether a rational trier of fact could have found
that the essential elements of the crime had been proved
beyond a reasonable doubt.” 

 (citation and internal quotation marks omitted).
         In mid-2016, S was three years old, and she
attended a day care where defendant was an employee. One
evening, as S’s mother applied cream to S’s diaper rash, S
spontaneously remarked, “That’s what [defendant] does.”
S’s mother asked, “What does defendant do? … Put cream
on?” S replied, “Yes,” and made a rubbing motion with “her
index finger and middle finger,” explaining that “It doesn’t
hurt like this,” as she pointed to her buttocks, but that “It
does hurt like this,” as she pointed to her vagina.
         The next morning, S’s mother notified police about
S’s disclosure. When detectives questioned defendant, he
described how he applies diaper cream to female children at
the daycare: He “wipe[s] it onto their private parts,” and “get[s]
it into the fold, all the folds.” He explained that, “as far as
the vagina, inside the vagina, I only [wipe] down.” Defendant
726                                                    State v. Gilbreath

clarified that he applied cream “[a]ll the way” into the “folds,”
and would “completely and totally cover” the “area where the
pee comes out,” both “[i]nside and out” and “in between the
labia.” Defendant was eventually indicted under ORS 163.411
for “knowingly penetrat[ing] the vagina of [S].”1
         During defendant’s bench trial, the court contemplated whether ORS 163.411 would apply to somebody who
“legitimately believes that that’s what you’re supposed to
do[, and has] zero sexual intent” and should consequently
be treated as “identical [to] the individual who actually penetrates for that sexual deviate purpose.” Ultimately, the
trial court found defendant guilty because he “penetrated
the vagina of [S],” but noted, “My finding is that there was
no sexualized intent proven.” Defendant then filed a motion
to reconsider, arguing that ORS 163.411 should not apply
to “an individual who penetrated without any sexual intent
nor any ill intent whatsoever.” The court denied that motion
but reiterated that, “while there was suspicious and concerning behavior, there was not proof to this Court beyond
a reasonable doubt of a sexualized or otherwise nefarious
intent in this case.”
         On appeal, defendant contends that the trial court
erred, because it found defendant guilty of first-degree
unlawful sexual penetration without proof of sexual or injurious intent and interpreted ORS 163.411 to require no such
intent. The state contends that the trial court did not err,
because no such proof is required. We agree with the state.
           ORS 163.411 provides, in relevant part:
   “[A] person commits the crime of unlawful sexual penetration in the first degree if the person penetrates the vagina,
   anus or penis of another with any object other than the
   penis or mouth of the actor and:
       “…
       “(b)   The victim is under 12 years of age[.]”
        Whether that statute requires proof that defendant acted with sexual or injurious intent is a question of

    1
      Defendant was also indicted for first-degree sexual abuse, ORS 163.427
(Counts 2 and 5), and first-degree sodomy, ORS 163.405 (Counts 3 and 4).
Defendant was found not guilty on Counts 2, 3, and 5, and acquitted on Count 4.
Cite as 

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statutory construction. We construe a statute to determine
the legislature’s intent, and we begin by examining the
statute’s text, context, and any legislative history offered by
the parties, State v. Gaines, 

, 

 (2009), along with rules of construction that “bear
directly on how to read the text,” PGE v. Bureau of Labor
and Industries, 

, 

 (1993).
         The text of ORS 163.411 plainly omits any sexual
or injurious intent as to the conduct element and, therefore, does not indicate any legislative intent to require proof
of sexual or injurious intent. See Gaines, 

(“[T]here is no more persuasive evidence of the intent of the
legislature than the words by which the legislature undertook to give expression to its wishes.” (Citation and internal
quotation marks omitted.)). Where, as here, a statute does
not specify a culpable mental state for a conduct element, the
legislature has prescribed that the minimum required mental state defaults to “knowingly.” See State v. Simonov, 

, 

 (2016) (citing ORS 161.115(2)).
         The context of ORS 163.411—which includes related
statutes, PGE, 317 Or at 611—likewise does not indicate
any legislative intent to require proof of sexual or injurious intent. “The legislature knows how to include qualifying
language in a statute when it wants to,” 

, and it
easily could have done so here, as it has for other sexual or
violent offenses, see, e.g., ORS 163.427 (first-degree sexual
abuse, requiring proof of “sexual contact,” defined as touching for sexual arousal or gratification); ORS 163.235(1)(c)
(first-degree kidnapping, requiring proof that person acted
with purpose of “caus[ing] physical injury to the victim”).
Additionally, the legislature created an exception to liability under ORS 163.411 for individuals performing medical
procedures and for law enforcement personnel conducting
contraband searches.2 See ORS 163.412. Such an exception

    2
      At trial, defendant argued that if the statute did not require proof of sexual
or otherwise injurious intent, then any “well-meaning parent or caregiver” who
goes “into the vaginal canal” in the course of treating diaper rash or cleaning
their children could be subject to a Measure 11 sentence—a result, defendant
argued, that the legislature could not have intended. We note that defendant does
not argue that his conduct would fall within the exception to liability set forth in
ORS 163.412(1); accordingly, we express no opinion on that matter.
728                                         State v. Gilbreath

to liability would be pointless surplusage if, as defendant
contends, conviction under ORS 163.411 required proof of
sexual or injurious intent. But as a general rule, we “assume
that the legislature did not intend any portion of its enactments to be meaningless surplusage.” State v. Clemente-Perez, 

, 

 (2015) (citing ORS
174.010 (instructing courts to construe statutes so as to
“give effect to all” provisions)).
        Further, nothing in the legislative history provided
by the parties persuades us that the legislature intended
to require proof of sexual or injurious intent for conviction
under ORS 163.411.
         We observe that defendant’s preferred interpretation would require us to deviate from the standard to which
this court must hold itself in construing a statute—i.e., “to
ascertain and declare what is, in terms or in substance, contained therein, not to insert what has been omitted[.]” ORS
174.010 (emphasis added); see also State v. Patton, 

, 

 (2010), rev den, 

 (2011)
(“We are prohibited, by statutory command and by constitutional principle, from adding words to a statute that the
legislature has omitted.”).
         Given the foregoing, the legislature’s intent is clear:
Under ORS 163.411, conviction for first-degree unlawful
sexual penetration does not require proof of sexual or injurious intent. Thus, viewing the facts in the light most favorable to the state, a rational factfinder could conclude beyond
a reasonable doubt that defendant unlawfully sexually penetrated S while applying diaper cream—irrespective of the
trial court’s express finding that the state failed to prove
any “sexualized or otherwise nefarious” intent.
        Affirmed.