State v. Woods

                                       506

Submitted December 15, 2020; Counts 1, 2, 3, 4, 16, 27, 28, and 29 reversed and
 remanded, remanded for resentencing, otherwise affirmed February 9, 2022


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                   EARL DOUGLAS WOODS, JR.,
                      aka Earl Douglas Woods,
                        Defendant-Appellant.
                    Yamhill County Circuit Court
                       18CR56229; A169997
                                   

     Defendant appeals a judgment of conviction for a number of criminal offenses,
raising 16 unpreserved assignments of error. He contends, based on the Supreme
Court’s decisions in State v. Haltom, 

, 

 (2020), and State
v. Simonov, 

, 

 (2016), that the trial court plainly erred in
failing to instruct the jury that, as to charges of first-degree rape under ORS
163.375(1)(d) and first-degree sexual abuse under ORS 163.427(1)(a)(C), it was
required to find that defendant knew that the alleged victims were incapable
of consenting to the sexual conduct because of mental incapacitation or physical helplessness. He also contends that the trial court plainly erred in giving a
nonunanimous jury instruction and accepting nonunanimous guilty verdicts on
several counts. Held: Given State v. Phelps, 

, 

,
rev den, 

 (1996)—which defendant did not argue should be overruled—
any error in failing to instruct the jury that a culpable mental state of knowingly applied with respect to that element of the offenses was not plain; nothing
in Haltom or Simonov displaced Phelps’s conclusion that requiring proof that a
defendant knew of the victim’s incapacity would be inconsistent with the affirmative defense in ORS 163.325(3) and its legislative history. The trial court plainly
erred in giving a nonunanimous jury instruction and in accepting nonunanimous
verdicts on Counts 1, 2, 3, 4, 16, 27, 28, and 29; however, that error was not structural and, as to the counts for which the jury’s verdict was unanimous, harmless
beyond a reasonable doubt.
    Counts 1, 2, 3, 4, 16, 27, 28, and 29 reversed and remanded; remanded for
resentencing; otherwise affirmed.



    Ladd J. Wiles, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Stephanie J. Hortsch, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
Cite as 

 (2022)                            507

  Before Mooney, Presiding Judge, and Lagesen, Chief Judge,
and DeVore, Senior Judge.
   DeVORE, S. J.
  Counts 1, 2, 3, 4, 16, 27, 28, and 29 reversed and remanded;
remanded for resentencing; otherwise affirmed.
508                                                        State v. Woods

           DeVORE, S. J.
          After a jury trial, defendant was found guilty of 26
offenses,1 including multiple counts of rape, sexual abuse,
strangulation, and assault, based on incidents involving five
different alleged victims, EL, SL, AW, AM, and AB. His sixteen assignments of error—all of which are unpreserved—
reduce to three contentions: (1) that the trial court plainly
erred in failing to instruct the jury that, in order to convict
as to first-degree sexual abuse, as charged in Counts 1 (EL),
13 (SL), and 28 (AB), and first-degree rape, as charged in
Counts 3 (EL), 11 (SL), and 27 (AB), the jury had to find
that defendant knew that the alleged victims were incapable of consent by reason of mental incapacitation or physical
helplessness; (2) that the trial court plainly erred in failing
to enter a judgment of acquittal on the charge of fourthdegree assault involving AM (Count 25); and (3) that the
trial court plainly erred in giving a nonunanimous jury
instruction and accepting nonunanimous guilty verdicts on
some counts. For the reasons explained below, we reverse
and remand Counts 1, 2, 3, 4, 16, 27, 28, and 29 and remand
for resentencing. Otherwise, we affirm.
        A recitation of the facts giving rise to the charges is
not necessary, nor would it benefit the bench, bar, or public.
        We reject without discussion defendant’s argument
that the trial court erred in not sua sponte entering a judgment of acquittal on Count 25.
         Taking defendant’s remaining arguments in reverse
order, we accept the state’s concession that the trial court’s
instruction to the jury that “ten or more jurors must agree”
to find defendant guilty was error under Ramos v. Louisiana,

, 

, 

 (2020) (nonunanimous guilty verdicts for serious offenses violate the Sixth
Amendment). Moreover, with respect to the counts on which
the jury returned nonunanimous verdicts, the court’s error
in accepting the verdicts was plain, State v. Ulery, 

, 

 (2020) (receipt of nonunanimous
guilty verdict for a nonpetty offense constitutes plain error

   1
     The trial court merged some of the guilty verdicts into other convictions.
Defendant was acquitted of other counts.
Cite as 

 (2022)                                          509

in light of Ramos), and for the reasons stated in that case,
we exercise our discretion to correct the error, 

(noting the court’s inability to correct the error under thencontrolling law and the gravity of the error). We therefore
reverse and remand defendant’s convictions on Counts 1,
2, 3, 4, 16, 27, 28, and 29 for a new trial. However, we reject
defendant’s contention that the nonunanimous jury instruction was “structural” error requiring reversal of all of his
convictions. State v. Flores Ramos, 

, 

(2020) (instructing the jury that it could return a nonunanimous guilty verdict was not a structural error and, where
the jury poll reveals that it unanimously found the defendant guilty of the charged offense, the nonunanimous jury
instruction can be held harmless beyond a reasonable doubt);
see also State v. Kincheloe, 

, 

 (2020),
cert den, ___ US ___, 

 (2021).
         Those conclusions leave for our consideration defendant’s contention in his first through sixth assignments of
error that the trial court plainly erred by failing to instruct
the jury that, with respect to first-degree rape and first-degree sexual abuse, a “knowingly” mental state applies to
the victim’s incapacity for consent because of mental incapacitation or physical helplessness element of those crimes
as charged. We have already held that defendant is entitled
to a new trial on some of the counts to which this argument
pertains due to Ramos-related error, as discussed above.
However, defendant’s contention remains potentially dispositive with respect to Counts 11 and 13, on which the jury
reached unanimous guilty verdicts.
         Those counts charged defendant with first-degree
rape and first-degree sexual abuse, respectively, under the
theory that the alleged victim, SL, was incapable of consent
by reason of mental incapacitation and/or physical helplessness. ORS 163.375(1)(d) (2017), amended by Or Laws 2021,
ch 82, § 4;2 ORS 163.427(1)(a)(C) (2017), amended by Or Laws

    2
      We refer to the 2017 version of ORS 163.375 throughout this opinion; it
provides, as relevant:
        “(1) A person who has sexual intercourse with another person commits
    the crime of rape in the first degree if:
        “…
510                                                           State v. Woods

2021, ch 82, § 7.3 As to the elements of first-degree rape as
charged in Count 11, the court instructed the jury:
       “In this case, to establish the crime of rape in the first
    degree in Count 11, the State must prove beyond a reasonable doubt the following elements:
       “Number one, the act occurred on or about February 25,
    2018.
       “Number two, [defendant] knowingly had sexual intercourse with SL.
       “And number three, SL was incapable of consent by reason of mental incapacitation or physical helplessness.”
As to the elements of first-degree sexual abuse as charged
in Count 13, the court instructed the jury:
    “[T]o establish the crime of sexual abuse in the first degree
    as alleged in Count 13, the State must prove beyond a reasonable doubt the following elements:
       “Number one, the act occurred on or about February 25,
    2018.
        “Number two, [defendant] knowingly subjected SL to
    sexual contact by touching her breast or vagina, a sexual
    or intimate part of SL.
       “And 3, SL was incapable of consent by reason of mental
    incapacitation or physical helplessness.”
         Defendant did not object to those instructions, nor
did he request that the jury be instructed that, as to the
third element of both offenses, a “knowingly” culpable mental state attached. That is, he did not urge that the jury was
required to find that defendant knew that SL was incapable

         “(d) The victim is incapable of consent by reason of mental defect, mental
     incapacitation or physical helplessness.”
     3
       We refer to the 2017 version of ORS 163.427(1)(a)(C) throughout this opinion; it provides, as relevant:
         “(1) A person commits the crime of sexual abuse in the first degree when
     that person:
         “(a) Subjects another person to sexual contact and:
         “…
         “(C) The victim is incapable of consent by reason of being mentally defective, mentally incapacitated or physically helpless[.]”
Cite as 

 (2022)                                             511

of consenting to the conduct because of mental incapacitation or physical helplessness. Nonetheless, on appeal, he
contends that the omission of that instruction is plain error
under State v. Simonov, 

, 

 (2016), and
State v. Haltom, 

, 

 (2020), and that
we should exercise our discretion under ORAP 5.45(1) to
correct it.4
         The state responds that defendant’s argument is
foreclosed by State v. Phelps, 

, 

, rev den, 

 (1996) (discussed below), which
held contrary to defendant’s position, noting also that we
have adhered to Phelps after Simonov was decided. See State
v. Gerig, 

, 

 (2019), rev’d
in part on other grounds, 

, 

 (2021)
(rejecting, based on Phelps, defendant’s plain error argument that the trial court erred by not instructing the jury
on first-degree rape and first-degree sexual abuse charges
that it was required to find that defendant knew that the
victim was incapable of consent due to physical helplessness,
mental incapacity, or mental defect); State v. Nyembo, 

, 

, rev den, 

 (2018) (per
curiam, citing Phelps).
         Defendant does not address Phelps. He did not file
a reply brief or request oral argument after the state raised
the case, nor does he argue, in his supplemental memorandum of additional authorities, which addresses Haltom, that
we should overrule Phelps in light of that case.
         “When a party has failed to preserve an assignment of error, we consider that error only if it is plain. ORAP
5.45(1). For an error to be plain error, it must be an error of
law, obvious and not reasonably in dispute, and apparent on
the record without requiring the court to choose among competing inferences.” Ulery, 

 (internal quotation marks and citation omitted). Here, the only question is
whether the error is “obvious and not reasonably in dispute.”
The parties do not dispute that the other requirements for

    4
      Haltom was decided after the parties filed their opening briefs and defendant raised it in a memorandum of additional authorities. The state did not
respond and the case was submitted without oral argument, so we do not have
the benefit of the state’s opinion regarding the effect of Haltom.
512                                                           State v. Woods

plain error review are satisfied. We generally determine
whether an error occurred by reference to the law in effect
at the time of our decision. 

. As explained below,
we conclude that the alleged error at issue here is not obvious or beyond reasonable dispute.
         We begin with Phelps, which is directly on point.
In Phelps, we rejected the defendant’s argument that a culpable mental state of knowingly applied with respect to
every element of first-degree rape in ORS 163.375(1)(d), and,
therefore, that the state was required to prove that defendant knew that the victim was incapable of consenting to
sexual intercourse. 

. We relied on a
statute that provided an affirmative defense to the charge.
That statute, ORS 163.325(3) (1995), applicable in Phelps
and in this case, provided:
       “In any prosecution under ORS 163.355 to 163.445 in
    which the victim’s lack of consent is based solely upon the
    incapacity of the victim to consent because the victim is
    mentally defective, mentally incapacitated or physically
    helpless, it is an affirmative defense for the defendant to
    prove that at the time of the alleged offense the defendant
    did not know of the facts or conditions responsible for the
    victim’s incapacity to consent.”
ORS 163.325(3).5 We concluded, after reading the text and
context of the two statutes together, that it was clear
    “that the legislature did not intend to require the state to
    prove that defendant acted with a culpable mental state
    with regard to whether the victim lacked the mental capacity to consent. ORS 163.325(3), which places the issue of
    a defendant’s knowledge regarding the victim’s mental
    capacity squarely on a defendant, would be rendered meaningless under defendant’s construction.”

. We observed, “By its expression in ORS 163.325(3),
the legislature has indicated its intention that knowledge of
the incapacity to consent of a person within the definition
of ORS 163.375(1)(d) is not a material element of the offense
….” 

. We also rejected defendant’s constitutional

     5
       The statute has since been amended. See Or Laws 2021, ch 82, § 3; Or Laws
2021, ch 410, § 1. All references to ORS 163.325(3) in this opinion are to the earlier version.
Cite as 

 (2022)                                          513

argument that ORS 163.325(3) violates due process because
it improperly shifts the burden of proof to the defendant.

.
         Under Phelps, the trial court in this case did not err
by failing to instruct the jury that, with respect to Counts 11
and 13,6 the state was required to prove that defendant
knew that SL was incapable of consent by reason of mental incapacitation or physical helplessness. Nevertheless,
the questions today are whether subsequent Supreme Court
case law has displaced Phelps, such that it is no longer good
law, and, ultimately, whether the court’s failure to give such
an instruction is plainly wrong.
          It must “plainly be the case” that subsequent
Supreme Court decisions undercut the validity of prior
Court of Appeals decisions before we will overrule our precedents. State ex rel Maney v. Hsu, 

, 

, rev den, 

 (2021). In deciding whether
one of our cases remains good law in light of a subsequent
Supreme Court decision, we examine whether the Supreme
Court’s decision overrules our prior holding and, if it does
not, whether the court’s analysis “demonstrate[s] that our
[prior decision] is ‘plainly wrong,’ such that we should overrule it ourselves.” State v. McKnight, 

,

, rev den, 

 (2018). The “plainly wrong”
standard is a “ ‘rigorous’ ” one, “ ‘grounded in presumptive
fidelity to stare decisis.’ ” State v. Hubbell, 

, 

 (2021) (quoting State v. Civil, 

, 

 (2017)). And, “[w]e start from the
assumption that our prior cases were decided correctly, and
the party urging us to abandon precedent must affirmatively persuade us to the contrary that a decision is plainly
wrong.” McKnight, 

 (internal quotation
marks omitted). In this case, defendant, as noted, does not
address Phelps, much less contend that Phelps was “plainly
wrong” in light of Simonov and Haltom, a factor that weighs
in our conclusion.
         We turn to Haltom, which elaborated and clarified
the court’s earlier decision in Simonov. In Haltom, the defendant
   6
     The defense of ORS 163.325(3) also applies to first-degree sexual abuse
under ORS 163.427(1)(a)(C), as charged in Count 13.
514                                                           State v. Woods

was convicted of second-degree sexual abuse as defined
in ORS 163.425(1)(a), which makes it a crime to “ ‘subject
another person to sexual intercourse’ ” or certain other sexual acts when the victim “ ‘does not consent thereto.’ ” 366
Or at 793 (emphases added; brackets omitted). Below and
on appeal, the defendant argued that the lack of consent
element of that offense was—similar to the “without consent” element of the unauthorized use of a vehicle offense,
ORS 164.135(1)(a) (2015),7 at issue in Simonov—a “conduct”
element for purposes of determining the minimum mental state that applies when the statute fails to specify one,
and, therefore, as in Simonov, “knowingly” is the minimum
mental state that attaches to that element of second-degree
sexual abuse. Id. at 794-96. The Supreme Court concluded
that the “does not consent” element of ORS 163.425(1)(a) “is
an integral part of the conduct that the statute proscribes,”
and therefore requires proof of a minimum mental state of
“knowingly.” Id. at 824.
        In this case, defendant contends that the same is
true with respect to the incapacity to consent element and
that those cases therefore compel the conclusion that a
knowingly culpable mental state also applies to the victim’s
incapacity to consent element of first-degree rape and first-degree sexual abuse as charged here. We are not persuaded.
         The Supreme Court has stated, based on ORS
161.095(2),8 that, for crimes defined in the Criminal Code,
which includes ORS 163.375 and ORS 163.427, “a culpable mental state is required for each element of the offense
except for those relating to the statute of limitations, jurisdiction, venue, and the like.” Haltom, 

 (footnote omitted); Simonov, 

 (“every ‘material

    7
      The legislature amended ORS 164.135(1)(a) after Simonov was decided. Or
Laws 2019, ch 530, § 1.
    8
      ORS 161.095(2) provides:
         “Except as provided in ORS 161.105 [governing violations and crimes
    outside the Criminal Code] a person is not guilty of an offense unless the person acts with a culpable mental state with respect to each material element
    of the offense that necessarily requires a culpable mental state.”
See also ORS 161.115(2) (providing that, if a statute does not prescribe a culpable
mental state, “culpability is nonetheless required and is established only if a
person acts intentionally, knowingly, recklessly or with criminal negligence”).
Cite as 

 (2022)                                              515

element’ of the offense ordinarily requires proof of a culpable mental state”; “[a]n element is ‘material’ unless it relates
‘solely to the statute of limitations, jurisdiction, venue’ or
similar matters (citing State v. Blanton, 

,

 (1978)). Admittedly, that statement undercuts
our conclusion in Phelps that, due to the enactment of ORS
163.325(3), “knowledge of the incapacity to consent of a person within the definition of ORS 163.375(1)(d) is not a material element of the offense,” 

 (emphasis
added), and the state is not required to prove that defendant
acted with a culpable mental state with regard to whether
the victim lacked the mental capacity to consent, 

(emphasis added).
         However, the court has yet to directly confront
the interplay between what the state must prove as to
the offenses of ORS 163.375(1)(d) and ORS 163.427(1)(a)(C),
which involve a victim’s incapacity to consent, and the affirmative defense provided in ORS 163.325(3), which expressly
requires the defendant to prove that they “did not know of
the facts or conditions responsible for the victim’s incapacity
to consent.”9 But see Haltom, 

 (recognizing a
portion of the commentary to ORS 163.325(3), suggesting,
as discussed below, that the legislature understood that the
state would not be required to prove culpable knowledge in
those circumstances). See also State v. Olive, 

, 113 n 2, 

 (2013) (explaining that, “under
ORS 161.095(2), unless the legislature expressly provides
otherwise, a culpable mental state is required for all facts
that the state must prove beyond a reasonable doubt to convict a defendant except those that relate solely to the statute of limitations, jurisdiction, venue, or other procedural
prerequisites to conviction” (emphasis added)). Thus, we are
not persuaded that Haltom effectively overruled Phelps; and
     9
       That question was not at issue in Simonov or Haltom. As noted above, the
affirmative defense set out in ORS 163.325(3) applies only in prosecutions where
“the victim’s lack of consent is based solely upon the incapacity of the victim
to consent because the victim is mentally defective, mentally incapacitated or
physically helpless.” (Emphasis added.) In Simonov, the issue was whether, in a
prosecution for unauthorized use of a vehicle, ORS 164.135 (2015), the jury was
required to find that the defendant knew that the use of the vehicle was “without
consent of the owner.” In Haltom, as discussed, the court addressed whether a
minimum mental state of “knowingly” applies to the “does not consent” element
of second-degree sexual abuse in ORS 163.435(1)(a).
516                                            State v. Woods

we are particularly unpersuaded where defendant has not
developed an argument to overrule Phelps. See Hubbell, 

 (“[T]he party seeking to change a precedent
must assume responsibility for affirmatively persuading the
court that it should abandon that precedent.” (Internal quotation marks, brackets, and citations omitted.)).
         Moreover, the court made clear in Haltom that, when
a criminal statute fails to specify the applicable mental state
or states, the determination of what mental state applies
depends, first, on the category—conduct, circumstance, or
result—the material element falls within. 366 Or at 798-
99. That is based on what the legislature that enacted the
statute intended or understood. 366 Or at 802; see id. at 802,
803 (explaining that the initial inquiry is “whether the legislature that enacted the statute intended or understood the
element at issue as a circumstance”—for which the mental
state of criminal negligence is sufficient—“or as part of the
conduct that the statute proscribes”—which requires a minimum culpable state of “knowingly”). As with any inquiry
into a statute’s meaning, resolution of that question requires
a careful examination of the statutory text and context as
well as any helpful legislative history. Id. at 803.
          Defendant’s argument in this case that, because
the court in Haltom determined that a knowingly mental
state applied to the element of the victim’s nonconsent in
ORS 163.425(1)(a) (second-degree sexual abuse), the same
necessarily applies with respect to the victim’s incapacity
to consent because of mental incapacitation or physical
helplessness element in ORS 163.375(1)(d) (first-degree
rape) and ORS 163.427(1)(a)(C) (first degree-sexual abuse),
ignores that analysis. As such, defendant’s argument does
not account for the potentially significant differences in
text and structure of the statutes. Compare ORS 163.425
(1)(a) (“and the victim does not consent thereto”) with ORS
163.375(1)(d) (“[t]he victim is incapable of consent by reason
of mental defect, mental incapacitation or physical helplessness”) and ORS 163.427(1)(a)(C) (“[t]he victim is incapable
of consent by reason of being mentally defective, mentally
incapacitated or physically helpless”) (emphases added). See
also Haltom, 

 (explaining that “[t]he use of
a particular grammatical construction may lend support to
Cite as 

 (2022)                                               517

one side of an interpretive controversy,” although it is not
dispositive); id at 804 (finding it “significant … that the
central conduct element in ORS 163.425(1)(a) is worded in
terms of ‘subject[ing] another person to sexual intercourse’ ”
(brackets in Haltom)).10
         Nor does defendant’s argument account for any
pertinent legislative history of ORS 163.375(1)(d) or ORS
163.427(1)(a)(C), because those statutes were not at issue in
Haltom. Notably, the court in Haltom did discuss the affirmative defense statute, ORS 163.325, as relevant context
for interpreting what the legislature intended with respect
to the “does not consent” element of second-degree sexual
abuse under ORS 163.425(1)(a). 366 Or at 814-18. And that
discussion indicates that there is legislative history that
could affect the analysis here.
        In Haltom, the state and the defendant had each
argued that the legislature’s provision of an affirmative
defense to sex crimes based on the defendant’s lack of
knowledge with respect to the victim’s mental or physical
incapacity to consent in ORS 163.325(3), without doing the
same with respect to the victim’s actual nonconsent in ORS
163.425(1)(a), provided support for their respective positions
on the question whether knowingly or criminal negligence
was the appropriate culpable mental state for the “does not
consent” element of the latter statute. 366 Or at 814-16.
         Of potential significance here, the defendant pointed
out that the Criminal Law Commission’s commentary pertaining to the affirmative defense of mistake as to the victim’s incapacity to consent under ORS 163.325(3) included
the following: “ ‘The defendant is given the opportunity
to exculpate himself but the state is not given the difficult
burden of proving culpable knowledge.’ ” Id. at 816 (quoting Commentary to Criminal Law Revision Commission
Proposed Oregon Criminal Code, Final Draft and Report
§ 106, 108 (July 1970) (emphasis in Haltom)). In accepting
the defendant’s argument, the Supreme Court acknowledged that commentary, stating that it “appears to support

    10
       The “[s]ubjects another person to” wording appears in ORS 163.427(1)(a)(C)
but not in ORS 163.375(1)(d).
518                                            State v. Woods

defendant’s position that there is no inherent contradiction
between providing an affirmative lack-of-knowledge defense
when the victim’s nonconsent is legally implied because of
age or incapacity and requiring the state to prove the defendant’s knowledge of the victim’s nonconsent when actual,
rather than legally implied, nonconsent is at issue.” Id. at
818. Although the court was addressing a different point,
that at least suggests that a different conclusion may result
with respect to the legislature’s intention when the issue is
legally implied, rather than actual nonconsent.
         Ignoring all of that, defendant instead relies on a
footnote in Simonov, in which the court referenced the first-degree rape statute as an example of when the legislature
has expressly provided mental states for all or certain of the
elements of an offense in the Criminal Code, including the
lack of a victim’s consent. 

 n 3. The court noted
that the requisite mental state for first-degree rape “depends
on the state’s theory of lack of consent,” and opined that, “if
lack of consent is based on the victim’s incapacity, then an
honest mistake, even if unreasonable, will excuse the defendant’s conduct, meaning that the applicable mental state is
knowingly,” citing ORS 163.325(3). 

 Defendant’s reliance
on that statement is flawed for two reasons.
        First, as the state points out, the court did not purport to alter the burdens of proof contemplated by the two
statutes and the footnote can be understood to say only that
a lack of knowledge, if proved by the defendant as an affirmative defense, could “excuse” conduct that would otherwise
constitute first-degree rape. Indeed, that is how we understood the footnote in our opinion in Gerig. See 

 n 1.
         Second, in any event, the footnote in Simonov is
dictum. Neither the proper construction of ORS 163.375(1)(d)
or ORS 163.427(1)(a)(C), nor how those statutes intersect
with the affirmative defense set out in ORS 163.325(3),
were at issue before the court. “Dictum is not binding on the
court, and we do not apply dictum that provides no useful
guidance.” Elk Creek Management Co. v. Gilbert, 

, 

 (2012), rev on other grounds, 

, 

 (2013); Godfrey v. Fred Meyer Stores, 202
Cite as 

 (2022)                              

, 680, 

 (2005), rev den, 

(2006) (“Ordinarily, dictum—even Oregon Supreme Court
dictum—about the construction of a statute has no particular precedential force.”).
         In sum, nothing in Simonov or Haltom displaces our
conclusion in Phelps that requiring proof that a defendant
knew of the victim’s incapacity would be inconsistent with
the affirmative defense in ORS 163.325(3) and its legislative
history; as a consequence, those cases are not a basis for
concluding that Phelps is plainly wrong insofar as it rejected
knowingly as a mental state, even if they give rise to the
possibility that the legislature intended for a lower culpable
mental state, such as criminal negligence, to apply, an issue
that is not presented in this case.
         We are not persuaded either that those cases effectively overruled Phelps or that we should overrule it ourselves as “plainly wrong,” especially, as noted, in the absence
of any argument from defendant to that effect. It follows
that the trial court’s error, if any, in failing to instruct the
jury on Counts 11 and 13 that it was required to find that
defendant knew that the victim was incapable of consent by
reason of mental incapacity or physical helplessness is not
plain. We therefore affirm those convictions.
       Counts 1, 2, 3, 4, 16, 27, 28, and 29 reversed and
remanded; remanded for resentencing; otherwise affirmed.