266 P.3d 128
Or. Ct. App.2011Background
- Defendant, 65-year-old male, was convicted of third-degree sexual abuse and attempted third-degree rape for sexual conduct with a 14-year-old.
- Victim visited her grandparents; defendant accompanied them and guided them to an isolated logging site.
- At the site, defendant kissed the victim, removed her hair tie, touched her, and exposed/handled his genital area in ways suggesting sexual intent.
- Defendant assaulted the victim by placing her hand on his penis and attempting to lift her shirt; the pair returned to the truck and later to the grandparents’ home.
- Defendant moved for acquittal arguing insufficient evidence of intent to have sexual intercourse; trial court denied; jury convicted both counts.
- During trial, a tape of an interview with a deputy sheriff was played; defense objected to statements about the victim’s credibility and requested redaction.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the evidence shows substantial step to rape | Hennagir’s actions show intent to have intercourse | Insufficient inference that intent was intercourse not other sexual conduct | Evidence supports substantial step and intent to intercourse |
| Whether admission of the interview violated Middleton rule | Tape contained credibility comments by officer | Should have been redacted; cautionary instruction insufficient | Cautionary instruction preserved harmlessness; no prejudice shown |
Key Cases Cited
- State v. Fries, 344 Or. 541, 185 P.3d 453 (Or. 2008) (standard for reviewing denial of acquittal; light most favorable to state)
- State v. O’Hara, 136 Or. App. 15, 900 P.2d 536 (Or. App. 1995) (evidence may show intent to commit a sex act though not uniquely referable)
- State v. Rinkin, 141 Or. App. 355, 917 P.2d 1035 (Or. App. 1996) (sexual conduct can verify purpose to commit a specific act without exact reference to it)
- State v. Benson, 63 Or. App. 467, 664 P.2d 1127 (Or. App. 1983) (whether circumstantial evidence supports intent to commit intercourse via forcible compulsion)
- State v. Walters, 311 Or. 80, 804 P.2d 1164 (Or. 1991) (definition of substantial step requires advancement and verification of criminal purpose)