State v. Wier, 260 Or. App. 341

Defendant was charged by indictment with first-degree sexual abuse, third-degree sexual abuse, and first-degree burglary.
The first-degree sexual abuse count alleged forcible compulsion with victim subjected to sexual contact.
The third-degree sexual abuse count alleged lack of consent for sexual contact.
Defendant requested jury instructions that would require a culpable mental state for forcible compulsion and for lack of consent.
The trial court declined to give these instructions and used the standard uniform jury instructions, omitting the fifth element requiring knowledge of forcible compulsion and knowledge of lack of consent.
The court ultimately convicted defendant on all counts; on appeal, defendant challenged the instructions as to both the first- and third-degree sexual abuse charges.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether for first-degree sexual abuse the state must prove knowledge of forcible compulsion	Nelson requires knowledge of forcible compulsion	Nelson should be overruled or instruction unnecessary	Conviction reversed for first-degree sexual abuse; remanded for resentencing
Whether for third-degree sexual abuse lack of consent requires a culpable mental state	Lack of consent is a culpable element requiring knowledge, recklessness, or negligence	Indictment dictates the mental state; lack of consent does not require knowledge	No error in third-degree instruction; indictment did not compel knowledge for lack of consent

State v. Nelson, 241 Or App 681 (2011) (culpable mental state required for forcible compulsion element)
State v. Pine, 336 Or 194 (2003) (reversed for failure to instruct on required mental state for forcible compulsion)
State v. Rutley, 343 Or 368 (2007) (indictment ambiguity may not impose extra burden beyond statute)
Rainoldi, 236 Or App 129 (2010) (culpable mental state required for material element in criminal code context)
Blanton, 284 Or 591 (1978) (general rule on culpable mental state in criminal code context)