State v. Diamond

628                  October 23, 2024               No. 755

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
                 ERIK RAY DIAMOND,
                  Defendant-Appellant.
               Crook County Circuit Court
                  22CR07189; A178864

  Wade L. Whiting, Judge.
  Submitted on June 12, 2024.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Marc D. Brown, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
  HELLMAN, J.
  Affirmed.
Nonprecedential Memo Op: 

 (2024)                629

         HELLMAN, J.
         Defendant appeals a judgment of conviction for
first-degree rape, ORS 163.375, and unlawful delivery of a
marijuana item, ORS 475B.346(3)(b). In two assignments of
error, defendant argues that the trial court erred when it
denied his motion for judgment of acquittal (MJOA) on the
first-degree rape charge and that it “plainly erred when it
failed to declare a mistrial.” As explained below, we affirm.
         For purposes of this nonprecedential memorandum
opinion, a detailed recitation of the facts would not benefit
the parties, the bench, or the bar. Accordingly, we recite in
our analysis only the facts necessary to understand our disposition of the appeal.
         Motion for judgment of acquittal. In his first assignment of error, defendant argues that the trial court erred
when it denied his MJOA because the state failed to prove
the element of forcible compulsion. “We review a trial court’s
denial of an MJOA to determine whether, after viewing the
facts in the light most favorable to the state, a rational trier
of fact could have found the essential elements of the crime
proved beyond a reasonable doubt.” State v. McCombs, 

, 

, rev den, 

 (2024)
(internal quotation marks and brackets omitted).
          Under its theory of the case, the state was required
to prove, among other elements, that defendant had “subjected [the victim] to forcible compulsion.” ORS 163.375(a).
“ ‘Forcible compulsion’ means to compel by … [p]hysical
force.” ORS 163.305(1)(a).
   “[T]o 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
630                                          State v. Diamond

   against his or her will may be different from that which is
   sufficient to compel another person to do so.”
State v. Nygaard, 

, 

, rev den,

 (2020) (internal quotation marks and citations
omitted).
         Having reviewed the record, we conclude that the
evidence would permit a rational factfinder to find that
defendant “subjected [the victim] to forcible compulsion”
because the victim testified that defendant put his hands on
her chest “[t]o hold [her] down” when he raped her. We therefore reject defendant’s argument that the state’s evidence
was legally insufficient because that “physical contact was
a result of the sexual contact” and the victim “did not have
a bruise on that location.” See State v. O’Hara, 

, 

 (2012), abrogated on other grounds
by State v. Vanornum, 

, 

 (2013) (rejecting the defendant’s argument that the evidence “show[ed]
no more than the ‘natural force’ and ‘mere positioning’ of
bodies that is associated with sexual intercourse”); see also
Nygaard, 

 (concluding that “the evidence
was sufficient for the issue of ‘forcible compulsion’ to go to
the factfinder” where the defendant forcibly moved the victim’s legs to make sexual contact possible). The trial court
did not err when it denied the MJOA.
         Closing argument. In his second assignment of
error, defendant argues that the trial court plainly erred
“when it failed to declare a mistrial” after the prosecutor’s
rebuttal closing argument “improperly shifted the burden of
proof to defendant by arguing that the jury should consider
his failure to present evidence to support his defense as evidence of guilt.”
         Plain error review is a two-step process. First, we
must first determine whether the error is plain. State v.
Vanornum, 

, 

 (2013) (an error is
“plain” when it is “an error of law, obvious and not reasonably
in dispute, and apparent on the record without requiring
the court to choose among competing inferences”). If those
three elements are met, then we must determine whether to
exercise our discretion to correct the error. Ailes v. Portland
Meadows, Inc., 

, 

 (1991).
Nonprecedential Memo Op: 

 (2024)                 631

         As relevant here, the Supreme Court has explained
that
   “a defendant asserting plain error must demonstrate that
   the prosecutor’s comments were so prejudicial that an
   instruction to disregard them would not have been sufficiently curative to assure the court, in its consideration of
   all the circumstances, that the defendant received a fair
   trial. In that situation, we have described the denial of the
   right to a fair trial as indicating ‘plain error.’ ”
State v. Chitwood, 

, 

 (2022).
“Generally, a proper jury instruction is adequate to cure any
presumed prejudice from a prosecutor’s misconduct.” 

 “In
other words, prosecutorial statements that were improper
but curable are not an appropriate subject of plain-error
review, because, in such circumstances, the defendant was
not denied a fair trial.” State v. Durant, 

,

 (2023) (emphasis in original).
        During the state’s rebuttal closing argument, the
prosecutor stated:
      “The judge told you that you can’t make this—make
   your decision based upon guesswork or speculation, conjecture, yet that’s exactly what the defense is asking you to do,
   focusing on that small piece. Well, what about, what if?
      “[I] [w]ould submit to you that the defense also has the
   ability to subpoena a witness if they think they were told
   something different.”
          We conclude that defendant has not established
plain error. Here, the prosecutor’s statements were improper
because they shifted the burden of proof to defendant. See,
e.g., State v. Schneider, 

, 

(2023) (explaining that, when the defendant’s theory was
that the state could not establish an element of the charged
crime, “[t]he prosecutor’s statements stating that defendant
‘could have’ presented certain evidence to support his theory
of defense” were improper); State v. Mayo, 

, 

 (2020) (“The prosecutor’s comments
… that defendant failed to provide additional evidence to
corroborate his testimony” were improper.). However, having “consider[ed] … all the circumstances,” we are not persuaded that the prosecutor’s statements “were so prejudicial
632                                        State v. Diamond

that an instruction to disregard them would not have been
sufficiently curative.” Chitwood, 

. “That is dispositive under the standard for plain-error review discussed
in Chitwood.” State v. Babcock, 

, 

 (2023); see also Durant, 

 (“[E]ven
if the statements were improper, they are in the realm of
statements that could have been adequately addressed by
striking or a curative instruction. It follows that defendant
has not established plain error.”).
          Affirmed.