State v. Bams

No. 305               April 2, 2025                  513

   This is a nonprecedential memorandum opinion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.
                  WILLIAM BAMS,
                 Defendant-Appellant.
            Clackamas County Circuit Court
                 CR0601768; A182070

  Ulanda L. Watkins, Judge.
   Argued and submitted February 25, 2025; on respondent’s motion to dismiss as defendant has absconded filed
February 20, 2025.
   Kyle Krohn, Deputy Public Defender, argued the cause
for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Oregon Public
Defense Commission.
   Michael A. Casper, Assistant Attorney General, argued
the cause for respondent. Also on the brief was Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
   Before Tookey, Presiding Judge, Kamins, Judge, and
Jacquot, Judge.
  JACQUOT, J.
   Motion to dismiss denied; remanded for entry of a corrected judgment; otherwise affirmed.
514                                                              State v. Bams

              JACQUOT, J.
         Defendant was convicted by a jury of first-degree
sexual abuse and first-degree sodomy.1 On appeal, in three
assignments of error, defendant argues that the trial court
erred by failing to sua sponte provide a jury instruction,
denying his motion for a mistrial, and entering a judgment
with clerical errors. Because the judgment does contain clerical errors, we remand for the trial court to enter a corrected
judgment. We otherwise affirm.
        Defendant first argues that the trial court plainly
erred by not sua sponte providing a definition for the term
“physical force” in the “forcible compulsion” element of first-degree sodomy, ORS 163.405(1)(a),2 and first-degree sexual
abuse, ORS 163.427(1)(a)(B).3 Defendant did not preserve his
argument.4 Nevertheless, because he requests we review for
    1
      The state moves to dismiss defendant’s appeal under ORAP 8.05(3), which
allows us to dismiss an appeal if we determine that the appellant is on escape
or abscond status at the time we review the motion to dismiss. ORAP 8.05(3) (“If
a defendant in a criminal case … on appeal of an adverse decision, escapes or
absconds from custody or supervision, the respondent on appeal may move for
dismissal of the appeal. If the court determines that the appellant is on escape
or abscond status at the time the court decides the motion, the court may dismiss
the appeal ….”). Given our decision in this case on the merits, and because as of
the date of our decision, defendant is back in custody, we decline to dismiss the
appeal and deny the state’s motion to dismiss.
    2
      ORS 163.405(1)(a) provides:
        “A person who engages in oral or anal sexual intercourse with another
    person or causes another to engage in oral or anal sexual intercourse commits the crime of sodomy in the first degree if:
         “(a) The victim is subjected to forcible compulsion by the actor[.]”
    3
        ORS 163.427(1)(a)(B) provides:
        “A person commits the crime of sexual abuse in the first degree when that
    person:
          “(a) Subjects another person to sexual contact and:
          “…
         “(B) The victim is subjected to forcible compulsion by the actor[.]”
    4
       Defendant argues this issue was preserved, despite his failure to request
an instruction defining “physical force” and seeming agreement that such an
instruction was not needed: At trial, while discussing jury instructions, the trial
court and parties agreed that the court would instruct the jury regarding the
applicable statutory definition of “forcible compulsion”—“to compel by physical
force.” The court asked, “And then do we define ‘physical force’? Is ‘physical force’
defined?” The parties informed the court that it was not defined in the statute,
and defense counsel suggested that “I’m guessing that everybody figured it just
has a basic definition … common meaning.” Defendant did not object nor did the
Nonprecedential Memo Op: 

 (2025)                                 515

plain error should we determine that the issue is not preserved, we review for plain error.
         An error is “plain” when it is an error of law, the legal
point is obvious and not reasonably in dispute, and the error
is apparent on the record without having to choose among
competing inferences. State v. Vanornum, 

,

 (2013). It is a matter of discretion whether we
will correct a plain error. State v. Gornick, 

,

 (2006).
          Both first-degree sodomy and first-degree sexual
abuse require the state to prove that a defendant subjected
the victim to “forcible compulsion,” which is defined by statute as “to compel by … [p]hysical force.” ORS 163.305(1).5 A
trial court is required to “state to the jury all matters of law
necessary for its information in giving its verdict.” ORCP 59
B; see ORS 136.330(1) (making ORCP 59 B applicable to criminal cases). It is plain error to fail to instruct the jury on all
material elements of a crime. State v. Gray, 

, 

 (2014). “That principle extends to important terms of art used in the elements of the crime.” State v.
Worsham, 

, 

, rev allowed, 

 (2024). “Generally, words of common usage need not
be defined for the jury.” State v. McDonnell, 

,

 (1992). However, “[w]hen a term’s legal meaning
differs from common usage … an instruction may be necessary.” Worsham, 

 (comparing cases).
         On appeal, defendant argues that “physical force” is
a legal term of art with a narrower meaning than its common usage and, therefore, according to defendant, the trial
state request an instruction to define the term “physical force.” We disagree that
the purposes of preservation were served and proceed to review for plain error.
ORAP 5.45(1).
    5
      ORS 163.305 provides:
        “As used in chapter 743, Oregon Laws 1971, unless the context requires
    otherwise:
        “(1) ‘Forcible compulsion’ means to compel by:
        “(a) Physical force; or
        “(b) A threat, express or implied, that places a person in fear of immediate or future death or physical injury to self or another person, or in fear that
    the person or another person will immediately or in the future be kidnapped.”
    ORS 163.305(1)(b) is not at issue in this case.
516                                                          State v. Bams

court had an independent obligation to provide a special jury
instruction about the definition of physical force. Defendant
relies on the Supreme Court’s decision in State v. Marshall,

, 

 (2011), for the proposition that
physical force is a term of art. However, defendant overstates
Marshall’s holding. Marshall explained the meaning of “forcible compulsion” and what it means “to compel,” but it does
not make obvious that the term “physical force” holds any
meaning other than that of its common usage in the manner
that defendant argues. Therefore, any error in not providing
a definition of the term “physical force” was not plain.6
          Second, defendant argues that the trial court
abused its discretion in denying his motion for a mistrial
after the prosecutor, in opening statements, described the
victim as “developmentally delayed,” and an investigating
officer, when explaining why it was difficult to interview the
victim right after the event, stated that “she was still very
upset. She was still crying. I could also—I had gotten information, I think at that point, that she was developmentally
delayed,” despite a pretrial ruling that the state could not
use such phrases due to the absence of a medical diagnosis.
          We review a trial court’s denial of a motion for a
mistrial for an abuse of discretion, and the court does not
abuse its discretion “unless the defendant was denied a fair
trial.” State v. Swanson, 

, 

(2018). “A fair trial is that in which the verdict is based on
the evidence and not on factors external to the proof at trial.”
State v. Osorno, 

, 

 (2014)
(internal quotation marks omitted). We generally defer to
the trial court’s determination regarding whether a mistrial
is warranted, because “the trial court is in the best position
to assess the impact of the complained-of incident and to
select the means (if any) necessary to correct any problem
resulting from it.” State v. Sprow, 

, 445
    6
      We express no opinion as to whether “physical force” holds its common
meaning or a particular narrower legal meaning, nor whether the holding in
Marshall could be interpreted to provide such a meaning. Given our standard of
review, we cannot say that the legal point defendant advances is obvious and not
reasonably in dispute.
    We also express no opinion as to whether, if the term had a specialized legal
meaning, the trial court was required to sua sponte provide an instruction absent
a request by the parties.
Nonprecedential Memo Op: 

 (2025)             

 (2019) (internal quotation marks omitted). The trial
court’s decision to give a cautionary jury instruction instead
of declaring a mistrial falls within the “permissible range
of choices committed to the court’s discretion,” unless the
instruction was insufficient to correct the problem as a matter of law. State v. Williams, 

, 

, rev den, 

 (2016). We assume that a jury
has followed the court’s curative instruction unless there is
an “overwhelming probability” that it was incapable of doing
so. State v. Garrison, 

, 

 (2014),
rev den, 

 (2015). When reviewing for abuse of discretion, we do not determine whether, sitting in the shoes
of the trial court, we would make the same ruling; rather,
our role is to determine whether the trial court came to a
legally permissible choice among the range of options. State
v. Romero, 

, 

 (2010).
         Defendant argues that the prosecutor and officer’s
description of the victim as “developmentally delayed” prejudiced him, because it provided an unfounded explanation
for inconsistencies in the victim’s statements and testimony,
and thereby undermined his “central argument” that the
victim lacked credibility due to those contradictions. After
defendant objected to the officer’s testimony and moved for a
mistrial, the court and parties engaged in a thoughtful and
in-depth discussion regarding how to handle the problem
outside the presence of the jury. The court ultimately denied
the motion and instead sustained defendant’s objection to
the officer’s testimony and specifically instructed the jury to
strike and not to consider the officer’s response in any way
during deliberations. The court determined that although
prejudicial, the prosecutor’s reference during opening statements and the officer’s brief reference during his testimony
were not so prejudicial as to require a mistrial, but the court
strongly warned the state that any future reference to the
victim having a developmental disability would result in a
mistrial.
         Defendant does not identify why there is an “overwhelming probability” that the jury was incapable of following the trial court’s instruction not to consider the improper
testimony. Defendant focuses on the possibility that the jury
518                                            State v. Bams

hearing the term “developmentally delayed” without a medical diagnosis meant that the jury would rely on facts not in
evidence to assess the victim’s credibility and explain inconsistencies in her statements. But, defendant does not explain
why, despite the court’s instruction, it is “overwhelmingly
probable” that any credibility determination made by the
jury to explain the inconsistencies was based upon that and
not upon the victim’s own testimony self-identifying as a
person with a learning disability, or the fact that the trial
occurred 17 years after the event.
          The parties agreed that they did not want to draw
further attention to the issue, and although there is a possibility that, to the extent the jury heard and remembered
the two comments, the jurors connected the victim’s potential developmental disabilities to her memory and credibility, there is no reason to believe it is “overwhelmingly probable” that the jury was incapable of following the court’s
instruction not to consider the officer’s statement. Further,
the victim herself testified in a manner that the trial court
believed did not show cognitive difficulties, and the jurors
thereby had the opportunity to assess her credibility themselves. The trial court was thoughtful and thorough when
making its decision, and its curative instruction was not
insufficient as a matter of law.
        Finally, defendant argues, and the state concedes,
that the written judgment contains clerical errors in that
the numbering used to refer to the counts of conviction does
not match the numbering in the operative indictment. We
agree with and accept the state’s concession and remand for
the court to correct the judgment to use numbering that is
consistent with the charging instrument.
        Motion to dismiss denied; remanded for entry of a
corrected judgment; otherwise affirmed.