77
Argued and submitted November 19, 2020; convictions on Counts 11 and 12
reversed and remanded, remanded for resentencing, otherwise affirmed
June 8; petition for review denied November 3, 2022 (370 Or 455)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOE ALBERT RAYGOSA,
Defendant-Appellant.
Lane County Circuit Court
18CR10987; A168779
512 P3d 824
Defendant was convicted of, among other things, two counts of first-degree
sexual abuse (Counts 11 and 12) as lesser-included offenses of first-degree rape.
He argues on appeal that the trial court committed plain error when it allowed the
state to proceed on first-degree sexual abuse charges as lesser-included offenses
of Counts 11 and 12, after it had granted defendant’s motion for judgments of
acquittal on the rapes charged in the indictment. The state agrees with defendant that first-degree sexual abuse is not a lesser-included offense of first-degree
rape as charged in this case, and that the error is plain, but it urges us to decline
to exercise our discretion to correct the error because, the state argues, defendant invited the error. The state further argues that, if we do correct the error,
we should order the trial court to reform the convictions on Counts 11 and 12
to convictions for attempted first-degree rape. Held: The Court of Appeals concluded that the error is plain, and that defendant did not invite the error. The
Court exercised its discretion to correct the error, and reversed and remanded
defendant’s convictions on Counts 11 and 12 for retrial on legally correct lesser-included offenses.
Convictions on Counts 11 and 12 reversed and remanded; remanded for
resentencing; otherwise affirmed.
Charles M. Zennaché, Judge.
David O. Ferry, Deputy Public Defender, argued the cause
for appellant. On the briefs were Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, and Sarah Laidlaw,
Deputy Public Defender, Office of Public Defense Services.
Timothy A. Sylwester, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman, Solicitor
General.
78 State v. Raygosa
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
ORTEGA, P. J.
Convictions on Counts 11 and 12 reversed and remanded;
remanded for resentencing; otherwise affirmed.
Cite as 320 Or App 77 (2022) 79
ORTEGA, P. J.
In this criminal case defendant was convicted, after
a jury trial, of six counts of first-degree sexual abuse (Counts 1
to 4, 11, and 12), ORS 163.427; two counts of first-degree
unlawful sexual penetration, (Counts 5 and 6), ORS 163.411;
and four counts of first-degree sodomy (Counts 7 to 10),
ORS 163.405.1 On appeal, he raises seven assignments of
error. We write only to address assignments one and two,
and we reject the remaining assignments without written
discussion.
In his first two assignments of error, defendant
argues that the trial court committed plain error when it
allowed the state to proceed on first-degree sexual abuse
charges as lesser-included offenses of Counts 11 and 12,
after it had granted defendant’s motion for judgments of
acquittal on the charges of first-degree rape that appeared
in the indictment.2 The state agrees with defendant that
first-degree sexual abuse is not a lesser-included offense of
first-degree rape as charged in this case, and that the error
is plain, but it urges us to decline to exercise our discretion
to correct the error. Specifically, the state argues that defendant invited the error. We conclude that the error is plain,
and that defendant did not invite the error. We exercise
our discretion to correct the error, and reverse and remand
defendant’s convictions on Counts 11 and 12 for further
proceedings.
The relevant facts are mostly procedural and not
in dispute on appeal. Defendant was charged with 12
offenses connected with his sexual assaults on his foster
child, J. Among the charges were Counts 11 and 12, two
counts of first-degree rape, charged under ORS 163.375(1)(b).
1
The statutes that apply in this case are the 2016 versions of ORS 163.375,
ORS 163.411, and ORS 163.405, which have since been amended, but those
amendments have no effect on the analysis or outcome in this case. See Or Laws
2021, ch 82, §§ 4-6; Or Laws 2017, ch 318, § 5. All references to those statutes,
therefore, are to the current versions.
2
The precise error at issue can be framed in multiple ways—the parties refer
to it at times as allowing the state to proceed on sexual abuse charges on Counts
11 and 12, which we take to mean ruling that the jury would be instructed on
first-degree sexual abuse as a lesser-included offense of first-degree rape, and
that the state could proceed with its case on that basis. For convenience, we too
will refer to the error that way.
80 State v. Raygosa
As charged, that offense required proof that defendant had
“sexual intercourse with another person” and “that the victim [was] under 12 years of age.” ORS 163.305(6) provides
that “ ‘Sexual intercourse’ has its ordinary meaning and
occurs upon any penetration, however slight; emission is not
required.”
At trial, J testified that defendant had touched her
genitals, and specifically her vagina, with his fingers, had
penetrated her vagina with his finger, and had touched her
in those places with his penis. J did not testify that defendant’s penis penetrated her vagina.
At the close of the state’s evidence, defendant moved
for judgments of acquittal. He argued that Counts 11 and 12
required proof of penetration of the vagina and that the
state had not adduced that proof. The trial court ultimately
agreed with defendant and granted the motion for judgments of acquittal on those counts. The state then sought to
proceed on a lesser-included offense, asking that the jury be
instructed on first-degree sexual abuse as a lesser-included
offense of first-degree rape. Defendant objected on the basis
that the court had already disposed of Counts 11 and 12 and
that the state could have pleaded alternative theories at the
outset of the case, but that the state was precluded from
proceeding on any lesser-included offense at that point. The
trial court rejected defendant’s arguments.
In the course of defendant’s arguments, his counsel
said,
“They could argue that this conduct constitutes the crime of
sexual abuse in the first degree and that would be a correct
statement of law, but in order to—on these two counts that
they’ve alleged and that the court has found that there isn’t
sufficient evidence to present that case—those counts to
the jury, then they can’t at that point then say oh, well, we
want to keep Counts 11 and 12 but ask for lesser includeds.”
(Emphasis added.)
On appeal, defendant abandons the argument he
made below, but raises as plain error the court’s decision to
allow the state to go forward with first-degree sexual abuse
charges in place of the first-degree rape charges. He points
Cite as 320 Or App 77 (2022) 81
out that first-degree sexual abuse is not a lesser-included
offense of first-degree rape as charged in Counts 11 and 12.
He contends that the trial court’s error is plain because it
is a legal error that is beyond dispute, and it appears on the
face of the record. He also argues that we should exercise
our discretion to correct the error.
The state agrees that the trial court erred, but
argues that defendant invited the error. Based on the portion
of defendant’s argument emphasized above, the state argues
that defendant agreed with the state that first-degree sexual abuse is a lesser-included offense of first-degree rape.
Consequently, the state argues, we should decline to exercise our discretion to correct the error.
Defendant is correct that first-degree sexual abuse
is not a lesser-included offense of first-degree rape as
charged in this case. “A crime is a lesser-included offense
of another crime either if it is necessarily included in the
greater offense because its elements are subsumed in the
greater offense, or if it is specifically pleaded in the charging
instrument.” State v. Leckenby, 200 Or App 684, 688,
117
P3d 273 (2005) (internal quotation marks omitted). The elements of first-degree sexual abuse are not subsumed within
first-degree rape—each contains an element that the other
offense does not—nor did the state specifically plead the
lesser offense. Id.; State v. Spring,
172 Or App 508, 512,
514,
21 P3d 657, rev den,
332 Or 559 (2001) (noting that
merger and jury instruction issues are essentially the same
and holding that rape and sexual abuse offenses did not
merge).
Defendant did not argue that the charge on which
the state wished to proceed was not a lesser-included offense
or otherwise bring the court’s attention to that issue. Thus,
he failed to preserve the error that he raises on appeal—
that the trial court erred by allowing the state to proceed on
Counts 11 and 12 on charges that were not lesser-included
offenses of the charges in the indictment. We agree, however, that the error is one of law, that it is obvious and not
reasonably in dispute, and that it does not require choosing
between competing inferences or going outside the record.
See ORAP 5.45; Ailes v. Portland Meadows, 312 Or 376, 381,
82 State v. Raygosa
823 P2d 956 (1991) (describing necessary components of
plain error).
We turn, then, to the state’s argument that defendant invited the error. We ordinarily will not reverse if an
error is invited. “Under the invited error doctrine, a party
who ‘was actively instrumental in bringing about’ an alleged
error ‘cannot be heard to complain, and the case ought not to
be reversed because of it.’ ” State v. Kammeyer, 226 Or App
210, 214,
203 P3d 274, rev den,
346 Or 590 (2009) (quoting
Anderson v. Oregon Railroad Co.,
45 Or 211, 216-17,
77 P 119
(1904)).
The state points to this portion of defendant’s argument as inviting the error: “They could argue that this conduct constitutes the crime of sexual abuse in the first degree
and that would be a correct statement of law.” However,
that argument does not address whether first-degree sexual abuse is a lesser-included offense of first-degree rape.
Defendant did not agree that the lesser offense was a lesser-included offense of the charged offense or that the lesser
offense was necessarily included in the rape charge because
its elements were subsumed in the greater offense, nor that it
was specifically pleaded in the charging instrument. Rather,
defendant acknowledged that there was evidence at trial of
conduct that could constitute first-degree sexual abuse, in
the context of an argument that the state could not proceed
on any lesser-included offense after granting the motion for
judgments of acquittal. Nowhere in defendant’s argument to
the trial court does defendant agree with the state’s position
that first-degree sexual abuse is a lesser-included offense,
let alone invite the trial court to instruct the jury on that
offense for Counts 11 and 12. Defendant therefore did not
invite the court’s error.
Accordingly, we address the question of whether to
exercise our discretion to correct the error and decide to
do so, because it is a grave error that substantially affects
defendant’s sentence and his criminal record.
We next consider the remedy for the error. The state
argues that we should vacate the convictions on Counts 11
and 12 and remand for the trial court to reform the convictions to attempted first-degree rape which, it argues, would
Cite as 320 Or App 77 (2022) 83
have been a proper lesser-included offense. “Generally, the
attempt to commit a crime is a lesser-included offense of the
crime itself.” State v. Cruz-Gonzelez,
256 Or App 811, 814,
303 P3d 983 (2013) (internal quotation marks omitted).
As the state acknowledges, however, that offense
would have required the jury to find an element that it
did not necessarily find when it convicted defendant of
first-degree sexual abuse on those counts. The elements of
attempted first-degree rape would have required proof that
defendant’s sexual assaults were committed with the intention to have sexual intercourse, a finding which was not
required to convict defendant of first-degree sexual abuse.
Though the state argues that there was sufficient evidence
to support such a finding, the jury did not so find. Further,
although the state is correct that the jury necessarily credited the state’s evidence, including the victim’s testimony,
the element of defendant’s intent or purpose for engaging
in the sexual abuse on which the jury found him guilty is
substantially different from the other elements that the
jury found were proven—that is, for sexual abuse, the jury
found that defendant’s purpose in engaging in the sexual
contact was “for the purpose of arousing or gratifying the
sexual desire of either party.” ORS 163.305(5); ORS 163.427.
We cannot say that the jury would necessarily have found
defendant guilty of attempted first-degree rape based on
the guilty verdicts on the counts it did consider. See State
v. Burgess, 240 Or App 641, 654,
251 P3d 765 (2011), aff’d,
352 Or 499 (2012) (“Although there was arguably sufficient
evidence from which the jury could have made that determination, it did not do so either expressly or by necessary
implication in rendering its verdict.”).
Nevertheless, defendant’s failure to object or otherwise bring to the court’s or the state’s attention that first-degree sexual abuse was not properly a lesser-included
offense of first-degree rape means that the court and the
state did not have the opportunity to determine what, if any,
would be a legally correct lesser-included offense. To put the
parties in the position they would have been in had the court
not plainly erred in allowing the state to proceed on the sexual abuse charges on Counts 11 and 12, we reverse defendant’s convictions on those counts and remand for retrial
84 State v. Raygosa
on a legally correct lesser-included offense. See Burgess, 240
Or App at 649 (crafting appropriate remedy when neither
outright reversal nor entry of lesser included conviction was
appropriate on plain error review “given the idiosyncratic
procedural posture” of the case).
Convictions on Counts 11 and 12 reversed and
remanded; remanded for resentencing; otherwise affirmed.
