State v. Simonson
243 Or. App. 535
Or. Ct. App.2011Background
- Defendant was charged in two indictments with ten counts of sexual abuse in the second degree and convicted on five counts.
- Sentences for the five convictions were 19, 21, 25, 31, and 36 months, all to be served concurrently.
- The State’s theory was that victims were under 18, hence could not consent to intercourse, under ORS 163.425.
- Defendant demurred, arguing that ORS 163.425 should apply only when the victim is under 16 and that the statute creates unconstitutional disparity with ORS 163.355.
- The court addressed Stamper (1990s Oregon decision) interpreting ORS 163.425 to include situations where the victim lacked capacity to consent due to age but was willing to engage in intercourse.
- Defendant requested reconsideration and ultimately the court reaffirmed Stamper, but held a sentencing proportionality issue required vacating sentences for remand.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Stamper interpretation viability | Stamper correctly interprets ORS 163.425 as applying when the victim lacks capacity due to age. | Stamper should be reconsidered; ORS 163.425 cannot apply to a willing victim who lacks capacity due to age without creating disproportionality. | Stamper affirmed; Stamper adheres |
| Vertical proportionality and sentencing | Proportionality is satisfied since the statute and guidelines govern appropriate ranges for the conduct. | Vertical proportionality requires sentencing under related statutes to be not more severe for similar acts; disparity exists between 7 vs 6 crime scores. | Sentences vacated and remanded for resentencing |
Key Cases Cited
- State v. Stamper, 197 Or.App. 413, 106 P.3d 172 (2005) (interprets ORS 163.425 to apply when victim lacks capacity to consent due to age)
- State v. Partain, 349 Or. 10, 239 P.3d 232 (2010) (requires well-argued briefing for reconsideration of established rules)
- State v. Rodriguez/Buck, 347 Or. 46, 217 P.3d 659 (2009) (defines proportionality framework for penalties)
- State v. Shumway, 291 Or. 153, 630 P.2d 796 (1981) (vertical proportionality in comparing statutory sentences)
- Cannon v. Gladden, 203 Or. 629, 281 P.2d 233 (1955) (vertical proportionality principle in sentencing)
- State v. Koch, 169 Or.App. 223, 7 P.3d 769 (2000) (applies vertical proportionality to forms of forgery)
- Newell v. Weston, 156 Or. App. 371, 965 P.2d 1039 (1998) (stare decisis caution in reconsidering established rules)