State v. Rojas-Sanchez

No. 948             December 26, 2024                147

   This is a nonprecedential memorandum opinion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.
               ANTONIO ROJAS-SANCHEZ,
                aka Antonio Rojas Sanchez,
                   Defendant-Appellant.
              Multnomah County Circuit Court
                   19CR71366; A180504

  Kelly Skye, Judge.
  Submitted November 19, 2024.
  Raymond Tindell filed the briefs for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jeff J. Payne, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, Kamins, Judge, and
DeVore, Senior Judge.
  KAMINS, J.
  Affirmed.
148                                             State v. Rojas-Sanchez

           KAMINS, J.
          Defendant appeals multiple convictions for sexual
abuse in the first-degree based on the repeated sexual abuse
of his stepdaughters S and A. He assigns two errors. For the
reasons discussed below, we affirm.
         Defendant first assigns error to the denial of his
motion for judgment of acquittal (MJOA). “In reviewing the
trial court’s denial of an MJOA, we view the facts in the
light most favorable to the state, drawing all reasonable
inferences in the state’s favor.” State v. Leake, 

, 

, rev den, 

 (2023). As to his first
assignment of error, defendant advances four arguments.1
First, as we understand it, defendant contends that because
no skin-to-skin contact occurred between defendant and
victims, the contact was not “sexual.” Second, defendant
argues that the state did not produce evidence that the
victims touched defendant’s penis with their hands. Those
arguments are unavailing.
         Touching need not be skin-to-skin contact to qualify as sexual contact nor does touching require the use of the
victims’ hands. See State v. Rodriguez/Buck, 

,

 (2009) (explaining that the defendant “causing
the back of the [child’s] head to be in contact with her clothed
breasts for about a minute” and another defendant “letting
the back of his hand remain when the [child] leaned her
clothed buttocks against his hand several times and later
wiping dirt off the back of her shorts with two swipes of his
hand” constituted first-degree sexual abuse).
         In his third argument, defendant contends that any
touching was incidental and not for sexual gratification.
However, S testified that defendant, on multiple occasions,
would make her sit on his lap. During those incidents, defendant would make a “humping motion,” “moving his penis up
and down,” and would moan when finished. She also testified that defendant touched her breast while on a hike. As
for victim A, she testified that defendant asked her to “sit
on top of him” while they were both in the living room. And
    1
      The state contends that portions of defendant’s argument are unpreserved.
For purposes of this appeal, we assume without deciding that defendant’s arguments are preserved.
Nonprecedential Memo Op: 

 (2024)                            149

similar to his conduct with S, defendant moved his hips up
and down, and A could feel defendant’s penis on her bottom. A also testified that while she was lying on the floor,
defendant “spooned” against her and “started doing the
motions again.” That conduct was sufficient to allow a factfinder to conclude that defendant touched S and A for sexual
gratification.
         In his fourth argument, defendant contends that
the trial court should have granted his MJOA on count 5,
which concerned the sexual abuse on a hike. He argues that,
because S testified inconsistently as to where that hike took
place—she described it as occurring at both Mount Tabor
and Multnomah Falls—he was entitled to acquittal on that
charge. However, any inconsistency in S’s testimony weighs
on her credibility, which is the sole province of the trier of
fact, and does not necessitate an acquittal. See State v. Guy,

, 

, rev den, 

(2009) (explaining that although the victim testified inconsistently, it was up to “the trier of fact [to] chose to accept
those explanations and to believe that her testimony at trial
was truthful” because the victim’s testimony established the
defendant’s touching qualified as sexual contact).
         In his second assignment of error, defendant contends that his aggregate 120-month prison sentence violates Article I, section 16, of the Oregon Constitution, which
provides that “all penalties should be proportioned to the
offense.” However, that argument is foreclosed by settled
case law: “disproportionality challenges with respect to
aggregate sentences imposed on convictions for multiple
counts are not cognizable under Article 1, section 16.”2 State
v. Horner, 

, 

 (2020), modified
on recons on other grounds, 

, 

(2021).
           Affirmed.


     2
       Defendant also asserts that his sentence violates the Eighth Amendment to
the federal constitution; however, because defendant did “not develop any argument that the sentence could violate the Eighth Amendment,” we do not address
it. State v. Horseman, 

, 407 n 6, 

 (2018), rev den, 

 (2019).