289
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted on June 21; remanded for resentencing, otherwise affirmed
October 5, 2022, petition for review denied February 23, 2023 (370 Or 789)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JULIO ROBERTO BOSARREYES,
Defendant-Appellant.
Deschutes County Circuit Court
17CR48489; A172835
Stephen P. Forte, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mary Reese, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Susan G. Howe, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
POWERS, J.
Remanded for resentencing; otherwise affirmed.
290 State v. Bosarreyes
POWERS, J.
Defendant appeals from a judgment convicting him
of first-degree rape, ORS 163.375 (Count 1), and two counts
of first-degree sexual abuse, ORS 163.427 (Counts 2 and 3),
challenging the denial of his motion for judgment of acquittal as to Counts 1 and 2 and the imposition of a compensatory fine. In his first two assignments of error, defendant
argues that the trial court erred in denying his motion for
judgment of acquittal because the state adduced neither sufficient evidence of forcible compulsion nor sufficient evidence
that defendant knowingly subjected the victim to forcible
compulsion. In his third assignment of error, defendant
argues that the trial court erred in imposing a compensatory fine to be paid to the victim when the record lacked
evidence that the victim incurred economic damages. The
state responds that the trial court did not err in denying
the motion for judgment of acquittal because defendant used
sufficient physical force to permit the factfinder to conclude
that he engaged in forcible compulsion, and the trial court
did not err in imposing the compensatory fine because there
was sufficient evidence to establish that defendant’s crimes
caused economic damages. The state concedes, however,
that the trial court erred in making the compensatory fine
payable to the victim, who was a minor at the time of the
crime and, as such, did not incur economic damages herself.
As explained below, we reject defendant’s arguments related
to forcible compulsion, and we accept the state’s concession
on the compensatory fine and remand for resentencing.
We begin with defendant’s challenge to the denial
of the motion for judgment of acquittal on Counts 1 and 2.1
Although defendant concedes that there was sufficient evidence for the factfinder to conclude that he used forcible compulsion when he ignored the victim’s attempts to push his
head away from her chest and lifted her shirt and touched her
breasts (which was the basis for Count 3), defendant maintains that there was insufficient evidence to conclude that
defendant used forcible compulsion to rub the victim’s vagina
(Count 2) and to engage in sexual intercourse (Count 1).
1
Defendant does not challenge Count 3, first-degree sexual abuse, based on
touching the victim’s breasts by means of forcible compulsion.
Nonprecedential Memo Op: 322 Or App 289 (2022) 291
We review the denial of a motion for judgment of acquittal
by examining the evidence in the light most favorable to the
state to determine whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices,
could have found the essential elements of the crime beyond
a reasonable doubt. State v. Cunningham,
320 Or 47, 63,
880
P2d 431 (1994), cert den,
514 US 1005 (1995).
In State v. Marshall, 350 Or 208, 219-27,
253 P3d
1017 (2011), the Supreme Court examined what the state
must prove to establish forcible compulsion. As we have
summarized,
“to constitute forcible compulsion, the physical force used by
the defendant must be greater than or qualitatively different from the simple movement and contact that is inherent
in the action of touching an intimate part of another. The
force also must be sufficient to compel the victim, against
the victim’s will, to submit to or engage in the sexual contact. That is, there must be a causal connection between the
sexual contact and forcible compulsion elements. However,
the force need not be violent or dominating. Significantly,
the force that is sufficient to compel one person to submit
to or engage in a sexual contact against his or her will may
be different from that which is sufficient to compel another
person to do so.”
State v. Nygaard,
303 Or App 793, 798,
466 P3d 692, rev den,
367 Or 115 (2020) (internal quotation marks and citations
omitted).
In this case, there was sufficient evidence of “forcible
compulsion” to withstand a motion for judgment of acquittal on Count 1, first-degree rape, and Count 2, first-degree
sexual abuse by touching the victim’s vagina by means of
forcible compulsion. Defendant, who was 41 years old, was
the victim’s putative stepfather as her mother’s long-term,
live-in boyfriend. After engaging in the conduct underlying
Count 3, there were a number of intervening events, including defendant locking the bedroom door and pushing the
victim backwards on his bed, which “forced” the victim to lie
on the bed. He then removed the victim’s pants and underwear, rubbed the victim’s vagina with his hand, lifted her
legs over his shoulders, penetrated the victim’s vagina with
his penis, and later repositioned the victim’s body on the
292 State v. Bosarreyes
bed before again lifting her legs up and continuing to penetrate the victim. That evidence could support a finding that
the physical force defendant used was sufficient to compel a
person in the victim’s circumstances to engage in the sexual
contact. See, e.g., Nygaard, 303 Or App at 800 (concluding
that the evidence was sufficient to support a finding that the
defendant acted with forcible compulsion when the defendant manipulated the victim’s legs so that he could contact
her vagina); Marshall,
350 Or at 227 (concluding that the
evidence was sufficient to support a finding that the defendant acted with forcible compulsion when the defendant
forced the victim’s hand down inside the defendant’s pants
and against his erect penis and that the victim had pulled
or jerked her hand away). Accordingly, the trial court did
not err when it denied defendant’s motion for judgment of
acquittal.
We turn to defendant’s challenge to the imposition
of a compensatory fine, which we review for legal error. See
State v. Alonso, 284 Or App 512, 515,
393 P3d 256 (2017)
(so stating). Under ORS 137.101(1), the court may impose a
compensatory fine payable to a “victim” who has suffered
“economic damages” as defined in ORS 31.705.2 See State v.
Moreno-Hernandez,
365 Or 175, 180-82,
442 P3d 1092 (2019)
2
ORS 137.101 provides, in part:
“(1) Whenever the court imposes a fine as penalty for the commission of a
crime resulting in injury for which the person injured by the act constituting
the crime has a remedy by civil action, unless the issue of punitive damages
has been previously decided on a civil case arising out of the same act and
transaction, the court may order that the defendant pay any portion of the
fine separately to the clerk of the court as compensatory fines in the case. The
clerk shall pay over to the injured victim or victims, as directed in the court’s
order, moneys paid to the court as compensatory fines under this subsection.
This section shall be liberally construed in favor of victims.”
ORS 31.705 provides, in part:
“(2) As used in this section:
“(a) ‘Economic damages’ means objectively verifiable monetary losses
including but not limited to reasonable charges necessarily incurred for
medical, hospital, nursing and rehabilitative services and other health care
services, burial and memorial expenses, loss of income and past and future
impairment of earning capacity, reasonable and necessary expenses incurred
for substitute domestic services, recurring loss to an estate, damage to reputation that is economically verifiable, reasonable and necessarily incurred
costs due to loss of use of property and reasonable costs incurred for repair or
for replacement of damaged property, whichever is less.”
Nonprecedential Memo Op: 322 Or App 289 (2022) 293
(explaining the statutory prerequisites for a compensatory
fine and concluding that, under ORS 137.101(1), the court
may impose a compensatory fine payable to a “victim” that
has suffered “economic damages”); ORS 137.103(2) (defining “economic damages” as used in ORS 137.101 as having
the meaning provided by ORS 31.705). An unemancipated
minor generally does not qualify as a “victim” for purposes
of a compensatory fine because the minor does not personally suffer economic damages. See State v. Avalos,
308 Or
App 362, 363,
480 P3d 334 (2020) (accepting the state’s concession that children were not “victims” for purposes of a
compensatory fine because they did not personally suffer
economic damages). In this case, the trial court erred in
imposing a compensatory fine payable to the victim because,
as the state concedes, the victim was a minor at the time
of the crime and, therefore, did not personally suffer economic damages. Accordingly, we accept that concession and
remand for resentencing.
Remanded for resentencing; otherwise affirmed.
