State v. Gray
261 Or. App. 121
Or. Ct. App.2014Background
- Defendant challenged the trial court’s instruction on forcible compulsion for rape in the first degree and sexual abuse in the first degree after a jury trial.
- The trial court instructed four elements for each offense but did not require a culpable mental state for the forcible compulsion element.
- The jury acquitted several counts while convicting Counts 1 (rape) and 2 (sexual abuse) and Count 3 (sexual abuse in the second degree) based on nonconsensual conduct.
- The court merged Count 3 into Count 1 and imposed minimum terms on Counts 1 and 2.
- Defendant argued plain error under Nelson and requested correction, though he did not preserve the exact instruction issue at trial.
- The court concluded the error was plain and exercised its discretion to correct, reversing and remanding Counts 1 and 2 for resentencing.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether failure to instruct culpable mental state for forcible compulsion was plain error | Nelson required culpable state for forcible compulsion. | Failure to give the instruction was plain error under Nelson/Vanornum. | Yes; the error was plain. |
| Whether the court should exercise discretion to correct the plain error | Serious felonies and potential prejudice warrant correction. | No correction if harmless; mitigating factors exist. | Yes; court exercised discretion to correct the error. |
| Impact of the instructional error on Counts 1 and 2 and remand extent | Counts 1 and 2 were affected; requires remand for resentencing. | Error may be harmless as to some convictions. | Reversed and remanded on Counts 1 and 2; remanded for resentencing. |
Key Cases Cited
- State v. Brown, 310 Or 347 (1990) (plain-error standard for instructional error)
- Ailes v. Portland Meadows, Inc., 312 Or 376 (1991) (discretion to correct plain-error)
- State v. Vanornum, 354 Or 614 (2013) (plain-error review of instructional error; overruling preservation rule)
- State v. Nelson, 241 Or App 681 (2011) (culpable mental state required for forcible compulsion)
- State v. Jury, 185 Or App 132 (2002) (plain-error analysis framework referenced by Brown/Ailes)
- State v. Oliphant, 347 Or 175 (2009) (correct handling of self-defense and reasonableness; related instructional error context)