State v. Kirkpatrick

484                   April 2, 2025              No. 296

   This is a nonprecedential memorandum opinion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.
        CHRISTOPHER BERT KIRKPATRICK,
                Defendant-Appellant.
            Lincoln County Circuit Court
                22CR30812; A182176

  Amanda R. Benjamin, Judge.
  Submitted February 25, 2025.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Laura A. Frikert, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Erica L. Herb, Assistant Attorney
General, filed the brief for respondent.
   Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
  KAMINS, J.
  Affirmed.
Nonprecedential Memo Op: 

 (2025)            485

        KAMINS, J.
         Defendant appeals a judgment of conviction for
first-degree sexual abuse of his step-granddaughter. He
assigns three errors: (1) that the trial court erred in denying
his motion for judgment of acquittal; (2) that the statutorily
required 75-month prison sentence is unconstitutional as
applied to him; and (3) that the trial court erred in imposing
a 10-year post-prison supervision term. We do not reach the
third assignment of error because it is moot. As to the first
and second assignments of error, 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, asking whether “the state
presented sufficient evidence from which a rational trier of
fact, making reasonable inferences, could find the essential
elements of the crime beyond a reasonable doubt.” State v.
Hedgpeth, 

, 

 (2019) (internal
quotation marks omitted). Defendant argues that, because
the evidence only shows that he touched his step-granddaughter’s vagina over her clothes while engaging in play,
the evidence was insufficient to establish that he touched
her for a sexual purpose, an essential element of the crime
of first-degree sexual abuse.
         A reasonable trier of fact could infer that defendant’s conduct was for the purpose of “arousing or gratifying
the sexual desire of either party,” ORS 163.305(5). Sexual
purpose may be inferred when the contact itself is sexual
in nature, or from the cumulative effect of the evidence and
circumstances surrounding the defendant’s actions. State v.
Case, 

, 

 (2023), rev den, 

 (2024); State v. Branch, 

, 

 (2006). Defendant’s step-granddaughter, A, testified that defendant was playing with her in her bedroom,
giving her a shoulder ride, when he reached up, held his
hand to her vaginal area, and wiggled his fingers. There
was also evidence that defendant engaged in similar conduct
on multiple occasions with A and with her younger sister,
K. Accordingly, the trial court did not err in denying defendant’s MJOA. See State v. D. B. O., 

,
486                                      State v. Kirkpatrick

 (2023) (noting that a “sexual purpose may be
inferred even when the contact is brief and involves clothed
intimate body parts, so long as that inference is reasonable
in the context of all of the evidence”); State v. Cockrell, 

, 

, rev den, 

 (2001)
(affirming conviction of first-degree sexual abuse where
defendant picked up his 11-year-old niece while roughhousing and repeatedly “rubbed” her crotch area).
          In his second assignment of error, defendant contends that the mandatory 75-month sentence for first-degree
sexual abuse was unconstitutionally disproportionate as
applied to him. We review questions of sentence proportionality for legal error. State v. Ryan, 

, 

 (2017).
         A statutorily required sentence is unconstitutionally
disproportionate when it “shocks the moral sense” of reasonable people. State v. Wheeler, 

, 

(2007). The inquiry involves “at least three factors”: “(1) a
comparison of the severity of the penalty and the gravity of
the crime; (2) a comparison of the penalties imposed for other,
related crimes; and (3) the criminal history of the defendant.”
State v. Rodriguez/Buck, 

, 

 (2009).
          As to the first factor, severity of the penalty compared to gravity of the crime, the mandatory prison sentence
for first-degree sexual abuse is 75-months. ORS 137.700(2)
(a)(Q). Defendant points out that his conduct falls somewhere on the less-grave end of the spectrum of the conduct
described in the first-degree sexual abuse statute. However,
A was particularly vulnerable: she was seven or eight years
old, her parents had an acrimonious relationship involving
multiple custody battles, and defendant occupied a position
of trust as her de facto grandfather and frequent caregiver.
There was also evidence of significant harm to A, and continuing impact on her family relationships. All of these
aspects add to the gravity of the offense in this case. See,
e.g., State v. Camacho-Garcia, 

, 

 (2014), rev den, 

 (2015) (offense was graver
because it took place in the context of “a trust relationship”
with victim’s de facto stepfather); State v. Alwinger, 

, 

 (2010) (offense was graver because
Nonprecedential Memo Op: 

 (2025)            487

“conduct was aimed at a particularly vulnerable victim”);
State v. Sokell, 

, 

 (2015),
aff’d, 

, 

 (2016) (considering trauma to
the victim as relevant to gravity of the offense). Therefore,
the first factor weighs towards upholding the sentence as
constitutional.
          As to the second factor, comparison with penalties for similar crimes, defendant points out that the same
75-month mandatory sentence applies to sexual offenses
worse than the one he committed. However, the fact that
Measure 11 imposes the same mandatory sentences for a
broad range of sex crimes does not necessarily mean that
the disproportionality rises to the level of unconstitutionality. State v. Lara-Vasquez, 

, 

, rev den, 

 (2021) (“[U]nless a defendant’s conduct falls at the outer edge of what constitutes first-degree
sexual abuse, the fact that worse conduct would be subject
to the same mandatory sentence is not enough to make a
75-month sentence constitutionally disproportionate” (internal quotation marks omitted)).
         The third factor also weighs against a determination of disproportionality; defendant’s prior convictions and
uncharged criminal conduct demonstrate a pattern of sexual abuse against children in his care, despite interventions.
Considering the Rodriguez/Buck factors together, defendant’s
sentence is not unconstitutionally disproportionate as applied.
         In defendant’s third assignment of error, he contests the trial court’s imposition of a ten-year post-prison
supervision (PPS) term because: (1) at the sentencing hearing, the court sentenced defendant to a PPS term of 10 years
minus time actually served (which would amount to less
than four years); and (2) ORS 144.103 mandates a PPS term
of 10 years minus the time actually served for convictions of
first-degree sexual abuse. After this appeal was filed, the
trial court issued an amended judgment that comported
with ORS 144.103. Therefore, defendant’s third assignment
of error is moot. Woodland v. Dept. of Rev., 

, 336-
37, 

 (2023).
        Affirmed.