State v. Kerne, 410 P.3d 369

Defendant, a former teacher, convinced his former student (an immigrant whose native language is Chuukese) that a person named “George Lopez” and a cartel would harm them unless she made sexual videos with him; he sent threatening messages while posing as "Lopez."
The victim, believing the threats, made approximately two sex videos per month from November 2013 through August 2014; she would not have had sex absent the threats and stopped only after a message revealed the impersonation.
Defendant was charged with 10 counts of first-degree rape (one per month) and 10 counts of coercion for the same episodes; the State alleged the same conduct constituted both coercion and rape by forcible compulsion.
At trial, the jury was instructed on rape but not told it must find that defendant knowingly subjected the victim to forcible compulsion (the mental-state language required by State v. Nelson). Defendant did not object to the instruction at trial.
The jury convicted on all counts; on appeal defendant argued the omission was plain error and urged correction because the missing mental-state element might have affected the verdict.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether omission of Nelson mental-state language in rape instruction is plain error	State: prior Oregon cases recognize omission as plain error; but here focuses on harmlessness	Lagesen (defendant): omission is plain error and may have led to conviction despite his claim he lacked knowledge that the victim believed threats were real	Court: omission is plain error (consistent with precedent)
Whether the appellate court should exercise discretion to correct the plain error	State: asks court not to correct because the error was harmless and defendant was proven to have knowingly compelled the victim (coercion verdicts)	Defendant: urges correction because jury might have convicted of rape despite accepting his testimony that he thought it was role-play (i.e., lacked knowledge)	Court: declines to correct error — exercised discretion to leave verdict intact because error was harmless
Whether the coercion verdicts foreclose a claim that the jury lacked a finding of knowledge for rape	State: coercion instructions required a finding that defendant knowingly compelled the victim by threats; guilty coercion verdicts thus show jury found knowledge	Defendant: argues there was at least a plausible theory jury believed coercion but not the mental-state for rape absent Nelson instruction	Court: coercion convictions necessarily required the knowledge element, so jury would have reached same result on rape counts; error was harmless

State v. Nelson, 241 Or. App. 681, 251 P.3d 240 (2011) (held jury must be instructed that defendant knowingly subjected victim to forcible compulsion for first-degree rape)
State v. Belen, 277 Or. App. 47, 369 P.3d 438 (2016) (declined to correct Nelson instruction error where error was harmless)
State v. Waldbillig, 282 Or. App. 84, 386 P.3d 51 (2016) (same: Nelson-based omission was plain error but harmless under facts)
Ailes v. Portland Meadows, Inc., 312 Or. 376, 823 P.2d 956 (1991) (appellate discretion not to correct plain error)
State v. Davis, 336 Or. 19, 77 P.3d 1111 (2003) (Oregon Constitution requires affirming judgment if error was harmless)