477
Argued and submitted September 28; convictions for first-degree sexual abuse
(Count 1) and third-degree sexual abuse (Count 2) reversed and remanded
for entry of a single conviction for first-degree sexual abuse, remanded for
resentencing, otherwise affirmed October 26, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
JUSTIN NATHANIEL LUGO,
Defendant-Appellant.
Washington County Circuit Court
19CR76877; A176818
520 P3d 917
Defendant appeals a judgment convicting him of first-degree sexual abuse
(Count 1), ORS 163.427, and third-degree sexual abuse (Count 2), ORS 163.415.
He raises two assignments of error. First, he argues that the trial court erred
when it denied his motion for judgment of acquittal on Count 1, because the evidence is legally insufficient to show that the victim was “physically helpless” as
that term is used in ORS 163.427. Second, he argues that the trial court plainly
erred by failing to merge the verdict for third-degree sexual abuse (Count 2) with
the verdict for first-degree sexual abuse (Count 1). Held: The trial court did not
err when it denied defendant’s motion for judgment of acquittal; the evidence was
sufficient for a factfinder to find beyond a reasonable doubt that, at the time of the
sexual contact, the victim was in a state sufficiently similar to the victim in State
v. Marker, 263 Or App 669,
329 P3d 781 (2014), to render her incapable of consenting to defendant’s sexual contact and was thus “physically helpless.” The trial
court did, however, plainly err in failing to merge the verdict for third-degree
sexual abuse (Count 2) with the verdict for first-degree sexual abuse (Count 1).
Convictions for first-degree sexual abuse (Count 1) and third-degree sexual
abuse (Count 2) reversed and remanded for entry of a single conviction for first-degree sexual abuse; remanded for resentencing; otherwise affirmed.
Janelle F. Wipper, Judge.
Andy Simrin argued the cause for appellant. Also on the
brief was Andy Simrin PC.
Erica L. Herb, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
478 State v. Lugo
TOOKEY, P. J.
Convictions for first-degree sexual abuse (Count 1) and
third-degree sexual abuse (Count 2) reversed and remanded
for entry of a single conviction for first-degree sexual abuse;
remanded for resentencing; otherwise affirmed.
Cite as 322 Or App 477 (2022) 479
TOOKEY, P. J.
Defendant appeals a judgment convicting him of
first-degree sexual abuse (Count 1), ORS 163.427, and third-degree sexual abuse (Count 2), ORS 163.415. He assigns
error to (1) the trial court’s denial of his motion for judgment
of acquittal on Count 1, and (2) its failure to merge the verdicts for Count 1 and Count 2. For the reasons that follow,
we reverse and remand for merger of verdicts on Counts 1
and 2, remand for resentencing, and otherwise affirm.1
“We review a trial court’s denial of a motion for a
judgment of acquittal for legal error, and we consider the
facts in the light most favorable to the state and draw all
reasonable inferences in the state’s favor,” to determine
“whether the evidence is sufficient to permit a rational factfinder to find all the elements of the charged crime beyond a
reasonable doubt.” State v. Yerton, 317 Or App 538, 539,
505
P3d 428 (2022). Consistent with that standard, we briefly
state the facts underlying defendant’s conviction on Count 1.
The state charged defendant with first-degree sexual abuse (Count 1) on the theory that defendant had subjected the victim, C, to sexual contact of an intimate area
while C was physically helpless. At trial, witnesses for the
state testified that, on the morning of the incident, C had
worked an approximately 11-hour shift before returning at
around 3:30 a.m. to the house where she was staying with
her boyfriend. At around 5:00 a.m., C’s boyfriend got up and
left for work. C remained in bed because she “was exhausted
from working” and “was passing out.” She “was naked in
the bed” and “had the blankets kind of tucked between her
knees” such that “her backside was exposed.” Defendant—
who is the stepbrother of C’s boyfriend—was staying at the
house in an adjoining room.
Shortly after C’s boyfriend left for work, C “woke[ ]
up to a hand running down from her shoulder to her butt.”
At first, C felt something touching her shoulder, but she was
1
In a third assignment of error, defendant contends that the trial court
abused its discretion when, with respect to Count 1, it decided not to impose
a downward departure sentence of 75 months rather than the presumptive life
sentence for repeat sex offenders prescribed by ORS 137.719(1). We reject that
argument without discussion.
480 State v. Lugo
“just waking up” and had “a lot of confusion,” thinking “why
is [my boyfriend] back so early?” The touching then became
“a stroke or a brush” that went “down to the bottom area”
and touched “an intimate area where you don’t want people
to touch.” C was “very tired” and had just “started coming
to” and “didn’t know what was going on.” C “rolled over and
saw that it was [defendant]” and “realized [that] something
[wa]s really bad.”2
After the state rested, defendant moved for judgment of acquittal on Count 1, arguing that the state had
failed to prove C was “physically helpless.” The trial court
denied defendant’s motion, explaining,
“[C] testified that she had gone to bed after being up for
a very long period of time and had worked very hard that
evening. She was passed out because of exhaustion [from]
work.
“I will also note for the record that the testimony supports the fact that she was starting to wake up and was
trying to make sense of what was happening. … But it is
not clear until after the act is completed as to what’s actually happening ….
“So, based on that, in the light most favorable to the
state, I do believe that a rational fact finder could find that
[C] was physically helpless[.]”
Defendant now appeals, arguing that the trial court
erred when it denied his motion for judgment of acquittal
on Count 1, because the evidence is legally insufficient to
show that the victim was “physically helpless” as that term
is used in ORS 163.427.
Under ORS 163.427, a person commits the crime of
sexual abuse in the first degree when that person “[s]ubjects
another person to sexual contact and … [t]he victim is
incapable of consent by reason of being … physically helpless[.]”3 A person is “physically helpless” when that person
2
C testified that the touching “was pretty quick” but might have lasted 15
seconds or “something like that,” but she “d[id]n’t know” for certain.
3
“Sexual contact” means, in part, “any touching of the sexual or other intimate parts of a person[.]” ORS 163.305(5). Defendant does not dispute that “sexual contact” occurred in this case.
Cite as 322 Or App 477 (2022) 481
“is unconscious or for any other reason is physically unable
to communicate unwillingness to an act.” ORS 163.305(4).
This court previously addressed the meaning of
the term “physically helpless,” as used in ORS 163.305(4),
in State v. Marker, 263 Or App 669,
329 P3d 781 (2014). In
Marker, the victim had been asleep and “awoke during the
night and felt [the] defendant’s hand in her pants in her
vagina playing with it.”
Id. at 670 (brackets and internal
quotation marks omitted). We construed the term “physically helpless,” and we concluded that “a victim who is
asleep when the sexual abuse occurs is incapable of consent
by reason of being ‘physically helpless.’ ”
Id. In reaching that
conclusion, we observed that a legislative report providing examples of “physically helpless” listed, among others,
sleeping persons; however, we noted that those “were given
as examples, not as an exhaustive list, of persons that would
qualify under the definition of ‘physically helpless.’ ”
Id. at
673 (emphasis in original). Additionally, in examining the
statutory text, we explained that the reason that a person
in a state of sleep is physically helpless is, in part, because
such a person “is not … fully possessed of one’s mental faculties” and “is not in a state … wherein all one’s mental
powers have returned.”
Id. at 672-73 (emphases added).
Here—viewing the facts in the light most favorable
to the state and drawing all reasonable inferences in the
state’s favor—the evidence is sufficient for a rational factfinder to find beyond a reasonable doubt that C was physically helpless when defendant subjected C to sexual contact.
The evidence shows that C “woke[ ] up to a hand running
down from her shoulder to her butt”; that she was “very
tired” and was “just waking up” and had just “started coming to” during the touching; and that, as a result, she had “a
lot of confusion” and “didn’t know what was going on” during
the touching. That evidence is sufficient for a factfinder to
find beyond a reasonable doubt that, similar to the victim in
Marker, C was not “fully possessed of [her] mental faculties”
and “not in a state … wherein all one’s mental powers have
returned” when defendant subjected her to the sexual contact and, consequently, that C was in a state such that she
was incapable of consent by reason of being physically helpless. Marker, 263 Or App at 672-73 (emphases added). Put
482 State v. Lugo
differently, C was physically helpless because, at the time of
the touching, she was in a state sufficiently similar to the
victim in Marker to render her incapable of consenting to
defendant’s sexual contact. We therefore conclude that the
trial court did not err when it denied defendant’s motion for
judgment of acquittal.
Turning to defendant’s second assignment of error,
he argues that the trial court plainly erred by failing to
merge the verdict for third-degree sexual abuse (Count 2)
into the verdict for first-degree sexual abuse (Count 1). He
acknowledges that that argument is unpreserved but contends that it qualifies for plain-error review. The state concedes that the error qualifies for plain-error review and that
this court should reverse and remand for correction of the
merger error and resentencing. We agree with and accept
the state’s concession, and we exercise our discretion to correct the error. See State v. Barnes, 209 Or App 332, 338,
147
P3d 936 (2006), rev den,
342 Or 256 (2007) (“[W]e conclude
that sexual abuse in the third degree merges into sexual
abuse in the first degree.”); see also State v. Benson,
309 Or
App 422, 440,
483 P3d 689, aff’d,
370 Or 58,
514 P3d 491
(2021) (accepting state concession and exercising discretion
to correct trial court’s plain error in failing to merge guilty
verdicts for second-degree sexual abuse and first-degree
rape).
Convictions for first-degree sexual abuse (Count 1)
and third-degree sexual abuse (Count 2) reversed and
remanded for entry of a single conviction for first-degree sexual abuse; remanded for resentencing; otherwise affirmed.
