288 P.3d 1004
Or. Ct. App.2012Background
- Defendant was convicted on two counts of sodomy in the first degree and two counts of sodomy in the second degree under ORS 163.405 and 163.395.
- Defendant challenged denial of a jury instruction requiring unanimous agreement on the forcible compulsion theory.
- The State argued forcible compulsion is an element proved by either physical force or a threat, not requiring juror agreement on the theory.
- Victim testified to acts of sexual assault beginning with forcible acts and physical threats during the first incident and a subsequent act with potential fear from the first incident.
- The trial court denied the instruction; all jurors found defendant guilty on all counts.
- The appellate court affirmed, ruling that forcible compulsion can be proven by alternative evidence under a single element.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether jurors must agree on the forcible compulsion theory used | State: forcible compulsion is a single element proven by either theory | Wollheim: jurors must agree on the specific theory | No error; state may prove the element by either method and jurors need not concur on the theory. |
| Whether forcible compulsion is proven by alternative evidence to satisfy a single element | State: multiple prove‑ups for one element permissible | Wollheim: alternative theories require unanimity on the theory | The state may present alternative evidence to prove a single element; no unanimity on method required. |
| Whether nonunanimous verdicts on sodomy counts are unconstitutional | State: nonunanimous verdicts permissible | Wollheim: nonunanimous verdicts unconstitutional | Rejected; nonunanimous verdicts are constitutional as upheld in prior cases. |
Key Cases Cited
- State v. Boots, 308 Or 371 (1989) (jury must concur on essential elements of a crime (aggravated murder context))
- State v. King, 316 Or 437 (1993) (DUII elements; one offense with multiple proofs allowed; no unanimity on test results required)
- State v. White, 115 Or App 104 (1992) (alternative acts may prove a single element; no need to agree on specific act)
- State v. Greeley, 220 Or App 19 (2008) (standard of review for denial of requested instruction; favorable to defendant)
- State v. Delaney, 160 Or App 559 (1999) (elements and structure of sodomy in the first degree)