704
Argued and submitted February 9, 2021; Counts 2 through 5 reversed,
remanded for resentencing, otherwise affirmed September 14, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
CHANCE NEAL WALLACE,
Defendant-Appellant.
Jackson County Circuit Court
17CR27381; A170354
517 P3d 323
Defendant appeals his conviction of rape in the first degree based on forcible
compulsion, as well as a guilty verdict of rape in the first degree and convictions of two counts of sodomy in the first degree and one count of sexual abuse
in the first degree based on the victim’s inability to consent by reason of mental defect. Defendant challenges the trial court’s denial of his motion for mistrial on all the counts based on his contention that the trial court erroneously
admitted testimony that implicated his right to remain silent. He also challenges
the court’s submission to the jury of the counts that were based on the victim’s
inability to consent to the alleged sexual conduct, contending that the trial court
erred in denying his motion for a judgment of acquittal on those counts based
on the state’s failure to prove that the victim did not have the ability to consent.
Held: The Court of Appeals rejected defendant’s contention that he was entitled
to a mistrial, concluding that the challenged testimony was not a comment on
defendant’s right to remain silent. But the court agreed with defendant that the
evidence in the record is not sufficient to establish the state’s burden to show
that the victim lacked the ability to consent to sexual activity due to her mental
disability. The trial court therefore erred in denying defendant’s motion for judgment of acquittal on the counts that were dependent on proof of that element.
Counts 2 through 5 reversed; remanded for resentencing; otherwise affirmed.
Lorenzo A. Mejia, Judge.
Shawn Wiley, Deputy Public Defender, argued the cause
for appellant. Also on the opening brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services. Chance Neal Wallace filed the
supplemental brief pro se.
Kirsten M. Naito, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Cite as 321 Or App 704 (2022) 705
Before Mooney, Presiding Judge, and Egan, Judge, and
Pagán, Judge.*
EGAN, J.
Counts 2 through 5 reversed; remanded for resentencing;
otherwise affirmed.
Mooney, P. J., concurring and dissenting.
______________
* Egan, J., vice DeVore, S. J.; Pagán, J., vice DeHoog, J. pro tempore.
706 State v. Wallace
EGAN, J.
Defendant appeals from a judgment of conviction of
rape in the first degree, ORS 163.375 (2015), amended by
Or Laws 2021, ch 82, § 4 (Counts 1 and 2),1 two counts of
sodomy in the first degree, ORS 163.405 (2015), amended
by Or Laws 2021, ch 82, § 5 (Counts 3 and 4), and one count
of sexual abuse in the first degree, ORS 163.427 (2015),
amended by Or Laws 2021, ch 82, § 7 (Count 5). Under the
statutes defining the offenses, they are committed if the victim “is subjected to forcible compulsion,” ORS 163.375(1)(a)
(2015), or, alternatively, if the victim “is incapable of consent
by reason of mental defect” ORS 163.375(1)(d) (2015), or by
reason of “being mentally defective.” ORS 163.427(1)(a)(C)
(2015).2 The guilty verdict on Count 1 was based on forceable
compulsion, and the guilty verdicts on Counts 2 through 5
were based on the victim’s inability to consent. Defendant
challenges the trial court’s denial of his motion for mistrial
on all the counts. He also challenges the court’s submission
to the jury of Counts 2 through 5, which were based on the
victim’s inability to consent to the alleged sexual conduct,
contending that the trial court erred in denying his motion
for a judgment of acquittal (MJOA) on those counts based on
the state’s failure to prove that the victim did not have the
ability to consent.
We have considered and reject without discussion
the arguments raised by defendant in his pro se supplemental brief. As discussed in more detail below, however, we conclude that some of the assignments of error in defendant’s
opening brief are well taken and require a reversal of the
guilty verdict on Counts 2 and the convictions on Counts 3
through 5.
We first address defendant’s fifth assignment of
error, which relates to all the counts, and in which he contends
1
The guilty verdict on Count 2 was merged into a single conviction on Count 1.
2
We note that ORS 163.375, ORS 163.405, and ORS 163.427 have been
amended since the charged crimes were committed, and now refer to a person’s
inability to consent “by reason of being mentally incapacitated, physically helpless or incapable of appraising the nature of the victim’s conduct.” Or Laws 2021,
ch 82, §§ 4-7. References to the statutes throughout this opinion are to the versions in effect at the time of the charged crimes.
Cite as 321 Or App 704 (2022) 707
that the trial court abused its discretion in denying his
motion for a mistrial. Defendant moved for a mistrial after
the court received into evidence the testimony of Detective
Sandler in response to the prosecutor’s question whether
defendant had said anything at the time of his arrest.
Sandler testified:
“No. I did place him into handcuffs, which were immediately checked for tightness and double locked, to make sure
they wouldn’t tighten up on him. At 1250 hours, I advised
him of his rights per Miranda, and he told me that he had
already given me a statement and he had nothing additional to say.”
Defendant asserts that Sandler’s response constituted a
comment on his invocation of the right to remain silent and
from which the jury could infer guilt. We have reviewed the
record and reject the contention. Before the arrest, Sandler
interviewed defendant by telephone, during which defendant had denied having had sexual relations with the victim, J, and asserted that she had made up the allegations.
In light of having heard a recording of Sandler’s telephone
conversation with defendant, and in the context in which
defendant made the statement at the time of his arrest that
he had nothing additional to say, as described by Sandler in
her testimony, we conclude that it is unlikely that the jury
would have inferred that defendant was invoking the right
to remain silent, from which it could make an inference of
guilt. Additionally, we conclude that it is unlikely that the
jury would have understood Sandler’s testimony as a comment on the right to remain silent. We note further that the
prosecutor did not highlight that testimony or even mention
it. Under those circumstances, we conclude that the trial
court did not err in determining that it was unlikely that
the jury would infer from the testimony that defendant had
invoked his right to remain silent, giving rise to an inference of guilt. See State v. Veatch, 223 Or App 444, 456,
196
P3d 45 (2008) (“Where the context makes such an inference
unlikely, the trial court does not abuse its discretion if it
denies the defendant’s motion for a mistrial.”). We therefore
reject defendant’s contention that the trial court abused
its discretion in denying his motion for a mistrial. With
our resolution of the fifth assignment of error, defendant’s
708 State v. Wallace
conviction on Count 1, based on forceable compulsion, is
affirmed.
Defendant’s remaining assignments of error challenge the trial court’s denial of his MJOA on Counts 2
through 5, based on the contention that the stated had failed
to present evidence sufficient to give rise to a jury question
as to whether J was unable to consent to the alleged sexual
conduct initiated by defendant and from which the charges
arise. In reviewing the denial of an MJOA based on the sufficiency of the evidence, we “view the evidence in the light
most favorable to the state to determine whether a rational
trier of fact, making reasonable inferences, could have found
the essential elements of the crime proved beyond a reasonable doubt.” State v. Reed, 339 Or 239, 243,
118 P3d 791
(2005). We summarize the evidence under that standard.
J was 28 years old at the time of trial. She was born
with fetal alcohol syndrome and suffered from viral pneumonia after she was born, which resulted in scar tissue in
her brain. As a result, J has an IQ of 62, and she has been
determined to have an intellectual disability.3 Although J
manages her personal care such as hygiene and dressing, as
a result of her disability, she needs help with many tasks of
daily life—she cannot live alone, shop for herself, or manage
her own transportation or finances. She requires support to
integrate into the community and socialize.
J lives with her grandmother, Boothe, who has
been her guardian since J was six months old. Boothe cares
for J full-time, except for four weekends each year, when
J attends a state-run program for people with mental disabilities. During the brief periods that Boothe arranges for
respite care, J has six other caregivers who meet her needs.
J works part-time at Wal-Mart, watering plants
and reorganizing and restocking clothing. For two years,
a nonprofit organization provided J with a coach at work
to help with transitions and navigating her job duties. As
of the time of trial, J had worked two shifts without assistance. J takes a taxi to and from work so that she does not
have to negotiate the bus system.
3
J has been diagnosed with “mild mental retardation.”
Cite as 321 Or App 704 (2022) 709
Because of J’s disability, she has poor short-term
memory. J gets lost easily, even around the block in her
neighborhood, and she does not go anywhere alone. She has
an optimistic view of people and is at a heightened risk to be
taken advantage of.
Defendant attended and worked in security at the
church that J attended with Boothe. Defendant started dating J after having been acquainted with her from church for
approximately one year.
Before she started dating defendant, J testified, she
was curious about sex and knew a little about sexual relations from watching movies.4 She knew that a man puts his
4
J explained her understanding of sexual relations on cross-examination by
defendant’s counsel:
“[DEFENSE COUNSEL]: So I want to ask you about some other terms to
see if you know what they mean. Virginity. What does that mean to you?
“A. To me from what I was told, was that it just means that, the person
has never experienced sex before another virgin, is sort of what I thought it
meant.
“Q. Okay. Then do you remember where you learned that word from?
“A. It seems like my grandmother, Bobbie. She would tell me a little bit
about what it would mean.
“Q. Okay. Could it be your mom?
“A. Seems like I remember it was her too. It was both of them.
“Q. It seems like from the [forensic] interview that you didn’t know
before what the word foreplay meant.
“A. Right. I’ve never—I’ve heard of foreplay, but I never, have never
really experienced it before.
“Q. Okay, the first time you heard that word was from [defendant]?
“A. Yeah.
“Q. Okay. Do you know what foreplay means now do you think?
“A. I don’t really know right now.
“Q. Okay, all right.
“A. Of what it really means.
“Q. And, going back to the term sex, do you know what the purpose is for
sex?
“A. Just two people that love each other and is married that makes love,
seems like what sex means to me anyway.
“Q. Okay, I don’t want to put words in your mouth so it would be fair to
say it’s a way two people express their love?
“A. Yeah.
“Q. Okay. And, how does that make them feel when they do that?
710 State v. Wallace
penis into a woman’s vagina and that babies are made that
way. J understands that it is “the Christian way” that a person should not have sex before marriage. When asked by
defense counsel if she should be able to make her own choice
about whether to have sex with someone, J answered, “Yes,
you know, if I’m ready and if I was married.”
A jury could infer from the evidence that defendant
was aware that J had intellectual deficits that made her vulnerable to manipulation. The evidence supports a finding
that J’s intellectual deficits are obvious after a short interaction with her. Boothe testified that before defendant and J
started dating, defendant asked Boothe about J’s diagnosis
and that Boothe shared with him that J had been diagnosed
as “retarded.”
Boothe was protective of J, and when defendant
asked J for a date, Boothe said that she was concerned and
told J that she must bring defendant in the house before
their first date. Thus, on their first date, against defendant’s
wishes but on Boothe’s insistence, defendant came into the
house to visit when he came to pick up J. Boothe shared with
defendant J’s navigation issues and how easily she gets lost.
Defendant told Boothe that he was a Christian man and
volunteered at the church. He assured Boothe that he would
“take things slow” with J and would not touch her, unless
they were married.
“A. Seems like it would make them feel they truly love each other and
they’re truly happy and they’re truly comfortable.
“Q. Okay. What about the term coerce? Do you know that word?
“A. A—no, I’ve never heard that, the term course [sic] word before.
“Q. What about the word rape? Do you know that word?
“A. I’ve heard of that word. It seems like I remember when I was growing
up, I didn’t have a whole lot of learning process and what it really meant. It
seems like it took me a little while when I was growing up on what it meant.
“Q. Okay, but you used that word yourself with Detective Sandler, right?
Do you remember that?
“A. Yes.
“Q. Okay. Did you know what that word meant then?
“A. Yes.
“Q. Okay, so what does the word rape mean?
“A. It means when the victim says no, it means no and the person that’s
doing it to them should stop instead of continuing it.”
Cite as 321 Or App 704 (2022) 711
The evidence would support a finding that defendant manipulated J and took advantage of her vulnerability. Defendant lied to J about his age, telling her that he
was 30 years old when he was in fact 50. J testified that
defendant asked her to marry him but also told her not to sit
with him in church or to tell anyone that they were dating,
because “he didn’t want any of the pastors from the church
know[ing] anything about what was really going on, because
they would, he told me that if they knew then he, he would
actu—and then they would just kick him out.” Defendant
told Boothe that he did not want anyone to know that he and
J were dating, because he did not want anyone to think he
was taking advantage of J.
J testified that defendant was controlling. Defendant
told J that he liked to help homeless people and to pretend
that he was Jesus and that J was Mary. J testified that she
did not like that, because she said she is not Mary. J resisted
defendant’s suggestions that she wear high heels and a
dress and not cut her hair. J testified that she also resisted
defendant’s requests for money and request that she stop
coloring in adult coloring books. J also testified that she initially resisted defendant’s attempts to know what she was
texting to her cousin on her cell phone.
J participated in a forensic interview with Sandler.
Sandler made a video recording of her interview with J,
and the jury heard Sandler’s summary of the interview and
watched the video, in which J described sexual activities
initiated by defendant. J also testified at trial about sexual
activities that defendant initiated, and her testimony was
consistent with what she had told Sandler in the interview.
J testified that, on a date, defendant asked J to take off her
clothes, and he helped her to undress. She thought it was
strange, because no one had ever asked her to take off her
clothes, but she allowed defendant to undress her because
she trusted him. Defendant took photos of J when she was
naked, and J said she was unhappy when defendant took
pictures of her breasts and vagina, which she described as
her “personal areas.”
J testified that defendant watched pornography on
his cell phone. One video showed a woman giving oral sex to
712 State v. Wallace
a man in the shower. Defendant asked J to do the same to
him, and she did.5
J testified that defendant put his face on her vagina
and licked. J backed up, but defendant pulled her back down
by the legs and continued.6
5
The prosecutor inquired, using J’s terminology:
“Q. Did [defendant] ever put his, his dick in your mouth?
“A. Yes.
“Q. Can you tell me about that?
“A. He, I’m trying to remember about that one, that, that was, that was
when he was actually looking up stuff on his phone, like some type of a video
of this, some of it actually had this lady, and, in the shower, actually saw her
have in her mouth on someone else’s dick, and that was where he got an idea
of putting his dick in my mouth.
“Q. So [defendant] showed you a video of a woman or lady and in that
video the lady—
“A. She looked kind of young.
“Q. She looked kind of young?
“A. But I’m not sure how old that video is, and it was just something he
looked up.
“…
“Q. Okay. How did that make your body feel?
“A. Actually, it actually made me felt like I was going to just gag, either
gag or vomit, like that’s how—
“Q. Did you get sick to your stomach?
“A. I thought I would. I should have unless I just gagged and just felt
disgusted like this does not feel right and this does not feel normal.
“Q. When [defendant] put his dick in your mouth, what did it taste like?
“A. It had like a salt-type of taste, like it would, like after he was done,
maybe just being done urinating or something from going to the bathroom is
what it tasted like.”
6
J testified:
“Q. Did [defendant] ever put his face on your virginity area?
“A. Yeah, that’s where he was, seems like I remember he was trying to
like lick it with his tongue.
“Q. How did that make your body feel?
“A. It—it felt scary.
“Q. Did you try to back up a little bit, or did you try to—
“A. Yeah, I did. I did try to back up a little bit and then that was when
he, seems like that was when some of the forces would get started or continue
and that was when he would, because I remember he’d, he would grab me like
either by my ankles or by my thighs and just pull me back down and I would
try and hang on to at least to some bars or something like that from where his
bed part was, but seems like I remember it was wood, too, so it wasn’t much
to really hang onto.
Cite as 321 Or App 704 (2022) 713
Defendant had J massage his testicles.7
Defendant initiated intercourse with J. J testified
that, during that conduct, defendant pinned J down flat on
her face. J testified that she told defendant that she was
not comfortable with continuing, but defendant did not stop,
and J started screaming. J testified that defendant put his
hand over her mouth and told her that he did not want his
roommate or the neighbors or the police to hear. J testified
that she said “ow” and “no,” but that defendant just repeated
the words and continued. J testified that she thought that
defendant had put his penis in her “behind part.” She testified that she did not know about condoms or lubricant.8
“Q. Did you say anything to him when he put his mouth on your virginity
area?
“A. Seems like I remem—I don’t really remember for sure if I said anything to him about that part, it’s just I remember I didn’t, I didn’t like it, and
it didn’t feel right. I did not felt (sic) right. It did not felt (sic) normal at all.”
7
J testified:
“Q. [J], did [defendant] ever have you touch or massage his balls?
“A. Yeah.
“Q. Can you tell me about that?
“A. He, that was when he was on top of me. Back then I was actually flat
on my back when that, when that part occurred, and seems like I remembered was he would use the same thing that he used kind of a little bit was,
that’s kind of where those sort of like jelly-type of things, whatever it’s called,
would occur, and that’s where he would make me, he would have me do that
and he would have, he would actually put that stuff on my hands and have me
do that type of thing.
“Q. And when [defendant] had you touch or massage his balls, how did
that make you feel?
“A. It felt, it felt uncomfortable.
“Q. Did he, did he tell you why he wanted you to massage his balls?
“A. Well, in his defense on that part, he, to him, it felt good.
“Q. So because it felt good to him?
“A. Yeah, it was like a, yeah, yeah, it was like a massage.”
8
The prosecutor inquired, again using J’s terminology:
“Q. And did you ever see [defendant] put anything on his dick?
“A. Yeah, and I never could figure out what the, what it was called, but
it was kind of like just like thick types of clear type of thing and around that
time he would use that before he forced his dick into my virginity, because
that was his way to try and force, force it in there, because it’s bigger, and I
remember when I would come home or if I was still at his place and I had to
use the restroom, when I would urinate, I would actually urinate that stuff
out.”
714 State v. Wallace
In his first through fourth assignments, defendant
asserts that the trial court erred in denying his motion for
a judgment of acquittal on the offenses alleged in Counts
2 through 5, based on a lack of evidence of J’s inability to
consent to sexual activity due to her mental disability. As
relevant to the charged crimes, under ORS 163.315(1)(a)
(2015), amended by Oregon Laws 2021, chapter 82, section 2,
a person is “incapable of consenting to a sexual act” if the person is “mentally defective.”9 ORS 163.305(3) (2015), amended
by Oregon Laws 2021, chapter 82, section 1, provided that a
person is “mentally defective” if the person “suffers from a
qualifying mental disorder that renders the person incapable of appraising the nature of the conduct of the person.”10
Defendant does not dispute that J suffers from a
mental disability—a qualifying “mental defect” under the
terms of the statute. But he contends that her mental defect
did not preclude her from being able to consent to sexual
activity. Defendant points out, for example, that J’s disability did not prevent her from expressing her desires or resisting some of defendant’s demands, such as those relating to
her dress, her hair, her money, or her coloring. J clearly had
the ability to refuse to do things that defendant asked her
to do. Defendant contends that the evidence fails to show
that she was unable to consent to sexual activity initiated
by defendant because her mental defect rendered her incapable of appraising the nature of the sexual conduct.
In Reed, the court determined the common meanings of the terms “incapable” and “appraise.” 339 Or at
244 (citing Webster’s Third New Int’l Dictionary 105, 1141
(unabridged ed 2002)). Based on the dictionary definitions of
those terms, the court stated:
9
As noted, 321 Or App at 706 n 1, the statutes defining the offenses were
amended in 2021 to omit the phrases “by reason of mental defects” and “by reason
of mentally defective” and to substitute “by reason of being mentally incapacitated, physically helpless or incapable of appraising the nature of the victim’s
conduct.” ORS 163.315 was also amended by Oregon Laws 2021, chapter 82, section 2, and now provides that a person is incapable of consenting to a sexual act
if the person is “incapable of appraising the nature of the person’s conduct.”
10
ORS 163.305 was amended by Oregon Laws 2021, chapter 82, section 1
to omit the definition of “mentally defective” and now provides that a person is
“mentally incapacitated” if the “person is rendered incapable of appraising or
controlling the conduct of the person at the time of the alleged offense.”
Cite as 321 Or App 704 (2022) 715
“ORS 163.305(3) refers to a mental defect that prevents
one from appraising the nature of one’s own conduct. The
‘appraisal’ must constitute an exercise of judgment and the
making of choices based on an understanding of the nature
of one’s own conduct. Further, in circumstances such as
those presented in this case, we view that standard in the
context of interactions with other persons, such as offers
and proposals from other persons to engage in certain
kinds of conduct.”
339 Or at 244 (emphasis added). The court held in Reed
that the trial court erred in denying the defendant’s MJOA
on the sexual crimes charged there based on the victim’s
inability to consent, explaining that the evidence presented
failed to link the victim’s mental condition to an inability to
consent to sexual contact:
“On this record, we conclude that the state’s evidence
did not support the trial court’s decision to deny defendant’s motion for a judgment of acquittal. [The expert witness] never was asked directly whether the victim’s mental
condition rendered her incapable of consenting to sexual
contact. [The expert witness]’s testimony did not address
either directly or inferentially the element of ‘incapable of
consent’ due to ‘mental defect’ in the sex crimes at issue,
as we have construed that element in this opinion. Indeed,
at oral argument in this court, the state conceded that it
had offered no direct evidence at trial regarding how the
victim’s mental capacity had affected her ability to appraise
the nature of the sexual conduct that defendant had initiated. As noted, [the expert witness] testified that the victim
was not socially independent in her daily affairs and had
difficulty maintaining a job. Although that testimony might
have had some bearing on the victim’s qualifications to
manage money or to participate in the work force, it failed
to describe, either directly or by permissible inference, her
ability to understand and to consent to sexual relations.”
Id. at 247. Under the standard announced in Reed, the evidence in the record must link the victim’s inability to understand and consent to sexual relations to the victim’s mental
disability.
In State v. Tilly, 269 Or App 665, 681,
346 P3d
567, rev den,
357 Or 640 (2015), we explained that the
holding in Reed requires more “than generalized proof of
716 State v. Wallace
mental disability.” Rather, the state must establish “the
complainant’s requisite, particularized inability to understand or consent to sexual relations.”
Thus, our case law has explained that the ability to
consent consists of two related concepts: (1) understanding
the nature of sexual conduct and (2) exercising judgment
and making choices based on that understanding. Reed,
339 Or at 244. Here it was the state’s burden to prove that,
because of her mental disability, J lacked the “particularized ability” to understand the nature of the conduct that
defendant initiated, i.e., to understand that it was sexual, or
to exercise judgment to make the choice to consent to it. Id.;
Tilly,
269 Or App at 681.
The state contends that the evidence of J’s vulnerability and lack of understanding of sexual relations,11 as
well as her passive acquiescence to defendant’s conduct that
she found unpleasant, met that burden. But as defendant
contends, J’s lack of knowledge about what constitutes sexual activity does not necessarily equate with an inability to
consent. The court explained in Reed that a mental disability does not necessarily preclude a person from being able to
consent to sexual activity:
“It is also necessary to point out that the statutory definition of mentally defective does not support the notion that
a person who has a mental disability is necessarily incapable of consenting to sexual relations under any circumstances. Rather, a person who can understand that another
person has initiated some kind of sexual activity with that
person may be capable of appraising the nature of the conduct and, thus, may be capable of consenting to a sexual act
for purposes of the statutory provisions at issue here.”
339 Or at 245 (emphasis added). It is clear that J had a limited and simplistic understanding of what sexual activity
11
The state does not contend that J’s mental defect would prevent her from
ever being able to consent. In fact, the state conceded at oral argument the possibility that J could, with help, become sufficiently knowledgeable about sexual
activity to give consent. That concession would seem to be inconsistent with the
state’s burden to show that, because of her mental disability, J lacked the “particularized ability” to appraise the nature of sexual conduct or to exercise judgment
to consent to it. But because of our disposition, we do not need to decide here
whether, to convict a person based on an inability to consent, the state must
establish that the person’s mental disability will always prevent the person from
being able to consent.
Cite as 321 Or App 704 (2022) 717
was. Because of defendant’s manipulations and misrepresentations, she may not even have understood that the activity
that defendant initiated with her was “sex” and not “foreplay.”12 But although J might not have understood that
12
We include the following excerpts of Sandler’s forensic interview of J to
illustrate J’s simplistic understanding of sexual activity:
“MS. SANDLER: So what I’d like you to do is tell me all about what
happened with [defendant] that led this officer to believe that this was a sex
abuse case. Can you tell me everything you’d done with [defendant]?
“[J]: Well, he would have me—when he would take me to his house, that’s
where he would call foreplay.
“MS. SANDLER: Okay.
“[J]: Which I had never heard of before.
“MS. SANDLER: What is foreplay?
“[J.]: Well, I thought they just called it foreplay—how I pictured it would
just be, you know, people that truly love each other—
“MS. SANDLER: Um-hum.
“[J]: —and when they’re ready to like have, you know, just, you know,
(indiscernible) or just be close—
“MS. SANDLER: Um-hum.
“[J]: —together. That’s what I thought it would be, but the way [defendant] did it, he would just like—one time he would just take me down in his
bedroom.
“MS. SANDLER: So tell me about the time you could be there in his
bedroom.
“[J]: It was the day before his birthday.
“[J]: Okay. And what happened?
“[J]: He like had me take off his—had me take off my clothes, and then—
“MS. SANDLER: Um-hum.
“[J]: —that is when he would end up taking pictures of me nude.
“MS. SANDLER: Okay.
“[J]: When I got out of the shower, he does the same thing through text,
just through text. He ended up taking pictures of me nude then, too.
“MS. SANDLER: Okay. So let’s go back to the day before his birthday.
You said that he took you down into his bedroom. So first, he had you take off
your clothes, and then what happened next?
“[J]: That is when he would like start with the pinning me down type of
thing, and then—
“MS. SANDLER: So what was that—
“[J]: —put his dick—his dick in me.
“MS. SANDLER: Okay. All right. So when you said he put his dick in
you, where did he put his dick? Where does his dick go?
“[J]: (Indiscernible). It was kind like around my—it was around my face,
which would be kind of like where the—like the (indiscernible) would be.
“MS. SANDLER: Okay.
718 State v. Wallace
defendant’s conduct toward her was “sex,” per se, i.e., she
lacked a precise understanding of the details or terminology
of “sex,” the evidence does not support the finding that J did
not understand that the activity initiated by defendant was
sexual in nature. J testified that defendant told her that putting his penis in her mouth was “part of sex.” J told Sandler
that she did not know anything about sex but that she “really
wanted to know what it was like.” When Sandler asked J if
she was “okay” with her clothes coming off, J responded, “Yes
and no.” The record requires the finding that J understood
that defendant had initiated sexual activity with her.
Although the evidence supports a finding that, in
initiating sexual activity, defendant took advantage of J’s
curiosity, as well as her vulnerability and lack of understanding, here, as in Reed, there is no evidence that J’s mental disability prevented her from understanding the sexual
nature of the conduct that defendant initiated. Nor would
the evidence support a finding that, because of her mental
disability, J lacked the ability to exercise judgment to consent to sexual conduct.13 In the absence of that evidence, we
must conclude that the record does not support a finding
that, because of her mental disability, J lacked the ability
to consent. We conclude, therefore, that the trial court erred
in denying defendant’s motion for a judgment of acquittal on
Counts 2 through 5.14
“[J]: And after that (indiscernible). One time when I went to the bathroom at home not too long ago, I actually did like (indiscernible). I remember
when I went to go to the bathroom and I got in the shower and I’d touch that
area and there would be times where it would kind of like slimy.
“MS. SANDLER: Okay.
“[J]: Which would be from where he put his dick at.
“MS. SANDLER: Okay.
“[J]: And he told me about—had said something about that being normal. It didn’t seem normal to me, having that—”
13
The state’s theory at trial was that J’s mental disability made her unable to
consent to sexual activity; thus, we are not presented with the question whether J
did not in fact consent to sexual activity when her reluctant acquiescence is considered in light of her mental disability and defendant’s manipulative behavior.
14
In view of our reversal of the guilty verdict on Count 2 and defendant’s
convictions on Counts 3 through 5, we need not address defendant’s sixth and
seventh assignments of error, in which he challenges, under Ramos v. Louisiana,
590 US ___,
140 S Ct 1390,
206 L Ed 2d 583 (2020), the trial court’s giving of a
nonunanimous jury instruction and his conviction of sexual abuse in the first
degree (Count 5) based on a nonunanimous verdict.
Cite as
321 Or App 704 (2022) 719
Counts 2 through 5 reversed; remanded for resentencing; otherwise affirmed.
MOONEY, P. J., concurring in part, dissenting in
part.
I join the majority and concur in rejecting the arguments raised by defendant in his pro se supplemental brief
and in affirming the judgment of conviction on Count 1, rape
in the first degree based on forcible compulsion. But because
I view the record pertaining to Counts 2, 3, 4, and 5 differently than the majority, and because I would affirm those
convictions as well, I must respectfully dissent in part.
The legal standard in reviewing the denial of a
motion for judgment of acquittal requires us to view the
facts and reasonable inferences in the light most favorable
to the state. State v. Cunningham, 320 Or 47, 63,
880 P2d
431 (1994), cert den,
514 US 1005 (1995). It is our job to
affirm the convictions when the evidence is legally sufficient
to support the jury’s verdict. Id.
The pertinent, undisputed evidence is this:
• J is an adult woman who suffers from a mental
disability—a qualifying “mental defect” under the
terms of former ORS 163.305(3) (2015).
• J is intellectually disabled with an IQ of 62, and she
has been diagnosed with mild retardation.
• J requires assistance with basic activities of daily
living—to the point that she requires a full-time
caregiver, every day of the year.
• J works at Wal-Mart where, after two years of
coaching, she waters plants and helps to organize
clothing.
• J has poor short-term memory and cannot successfully navigate her own neighborhood; she requires
a pre-arranged taxi to get to and from Wal-Mart.
• J has a vague understanding of what sex is and
where babies come from, and she has expressed
some interest in learning about sex.
720 State v. Wallace
• When defendant asked J to change her hairstyle and
her manner of dress, she resisted those requests.
• When defendant asked J to remove her clothing,
she did so reluctantly and only because she trusted
defendant, but his physical advances were scary,
uncomfortable, and made her gag; when J tried to
pull away from defendant, he stopped her and continued what he was doing.
A rational jury, drawing on its common knowledge
about intellectual capacity in humans and what that looks
like in terms of how a person functions in the world could
rationally conclude that J’s qualifying mental disorder rendered her unable to consent to sexual contact with defendant under the circumstances of this case. No one would
suggest that a third-grade child of average intelligence, who
functions scholastically at the same level as an adult with
an IQ of 62, would have the capacity to consent to sex. It
would not matter that the child knew something about sex
or even that the child was interested in learning about sex.
And it would not matter that the child had resisted haircuts
or refused to wear certain clothing items. We presume that
children do not have sufficiently-developed adaptive skills
or the judgment necessary to negotiate the complex dynamics of a sexual relationship—no matter how smart the child
may be. Intelligence in the academic or scholastic sense is
only part of the picture.
Here, the jurors knew that J’s IQ was 62 and that
she had been diagnosed with mild mental retardation. In
fact, they knew that J’s mental disability was a “mental
defect” under the first-degree rape statute—a point defendant did not dispute. To be sure, they also knew that J was
an adult—not a child in third grade. But while mental retardation begins in childhood, it survives childhood and continues into adulthood. Given that the jurors had evidence of J’s
compromised intellectual capacity, mild mental retardation
diagnosis, as well as testimony bearing on J’s limited adaptive skills, they could logically conclude on this record, that
because of her mental disability, she was not able to consent
to sex with defendant.
