Fоllowing a jury trial, defendant was convicted of five counts of sodomy in the first degree, ORS 163.405, and five counts of sexual abuse in the first degree, ORS 163.427. On appeal, defendant raises multiplе assignments of error. We write only to address defendant’s contention that the trial court erred in denying his motion for judgment of acquittal on all five counts of first-degree sexual abuse and reject defendant’s other assignments of error without discussion. Defendant asserts that the state failed to produce legally sufficient evidence corroborating dеfendant’s confession as to those counts. ORS 136.425(1) (2007).
We review the denial of a motion for judgment of acquittal to determine whether, viewing the evidence in the light most favorаble to the state, a rational factfinder could have inferred from the evidence the essential elements of first-degree sexual abuse. State v. Holcomb,
Viewed in that light, the pertinent facts are as follows. In 2008, when the incidents took place, S, the victim, was five years old. At that time, S lived with her cousin Denetclaw, who was her primary caretaker, and defendаnt, Denetclaw’s fiancé. S referred to Denetclaw as her “mom” and defendant as “daddy Robert.” After Denetclaw discovered. S displaying sexualized behavior and S reportеd sexual touching by individuals other than defendant, Denetclaw took her to the Kids Intervention and Diagnostic Service (KIDS) center for an evaluation. Jill Hartley, a physician assistant at the KIDS center, conducted a medical examination of S. During that examination, S disclosed the following: defendant had put his penis in S’s mouth 10 times; when defendant did so, he would tell hеr that “she looked pretty”; defendant told S to “take * * * off [her clothes]”; defendant rubbed and licked S’s nipples; those instances occurred “in the living room,” “on the couch,” and when “[mjommy [was] at work”; defendant told S “[not to] tell anybody”; and when Hartley asked S if anyone had ever given her “owies where the pee comes out,” S responded, “only my daddy does.”
At trial, the state’s evidence included, among other things, defendant’s confession to having S “grind” her vaginal and anal area on his groin; S’s disclosures to Harley, stated above, wеre offered as corroborative evidence of that confession. Before the close of the state’s case, defendant moved for a judgment of acquittal, arguing, that, although there was some corroborative evidence as to the sodomy counts, the state failed to adduce any evidence to corroborate defendant’s confession as to the sexual abuse counts, as required by ORS 136.425.
The state responded:
“What we have is a victim that disclosed that Daddy had had her sit on the couch, told her not to tell, that it haрpened on the couch at the house when Mom wasn’t there, * * * she disclosed in her interview with Jill Hartley, it happened 10 times.
“* * * [Defendant's disclosure in the interview was again that he еstimated five to six times over two months which is also ten times. I don’t know that [S] specifically has to say, ‘Grinding,’ in her disclosure in order for us to make that charge or in order for a reasоnable * * * trier of fact to reasonably find that those allegations took place.
“I don’t believe that there’s a lot of corroboration, but I think that there’s * * * enough cоrroboration for the charge to go to the jury”
The trial court agreed with the state that, although “there’s not much [corroboration] * * * with regard to [the sexual abuse counts],” the corroborative evidence was sufficient to deny defendant’s motion for judgment of acquittal. Ultimately, the jury convicted defendant on all counts — five counts of first-degreе sodomy and five counts of first-degree sexual abuse.
On appeal, defendant essentially reprises the arguments he advanced to the trial court — that the state failed to present any evidence to corroborate his confession as to the sexual abuse charges as required by ORS 136.425. Although defendant acknowledges that the evidence of S’s disclosures to Hartley provided sufficient corroboration as to the sodomy counts, he argues that S’s disclosures do not relate to the five counts of first-degree sexual abuse. Specifically, defendant argues that, among other things, “[S’s] statement that only her daddy gave her owies where the pee comes out * * * does not tend
As noted, ORS 136.425(1) provides that a confession аlone is not sufficient “to warrant the conviction of the defendant without some other proof that the crime has been committed.” The Supreme Court has explained that that statute codified the common law corpus delicti rule, which requires the state to show (1) that the injury or harm specified in the crime occurred and (2) that the injury or harm was caused by someоne’s criminal activity. State v. Lerch,
As relevant here, defendant confessed to conduct constituting first-degree sexual abuse. ORS 163.427.
Here, aside from defendant’s confession to having S “grind” her vaginal and anal area on his groin, the state adduced evidence of S’s disclosures that defendant, on several occasions, had sexual contact with S, including evidence that defendant told S to take her clothes off, that defendant licked and rubbed her nipples, and that defendant had S put her mouth on his penis. Most notably, the state presented evidence that S stated that “only [her] daddy” gave her “owies where the pee comes out.” As the state asserts, viewed in the context of the other evidence of defendant’s sexual contact with S, a jury could infer that the “owies” that S was describing referred to sexual contact by defendant — particularly, that defendant had S “grind” her vaginal and anal area on his groin for purposes of sexual gratification. To be sure, a jury could conclude that the evidence was insufficient to convict defendant of sexual abuse of S. Nevertheless, in order for that issue to go to the jury, the state was only required to submit enough evidence from which a rational trier of fact could draw an inference that tends to show that the charged crimes occurred. The state’s evidence met that standard. Accordingly, the trial court did not err in denying defendant’s motion for judgmеnt of acquittal.
Affirmed.
Notes
ORS 136.425(1) (2007) provided:
“A confession or admission of a defendant, whether in the course of judicial proceedings or otherwise, cannot be given in evidence against the dеfendant when it was made under the influence of fear produced by threats; nor is a confession only sufficient to warrant the conviction of the defendant without some othеr proof that the crime has been committed
(Emphasis added.) The language italicized above, which is central to the issue presented in this case, was materially altered in 2009. See Or Laws 2009, ch 875, § 1. However, because defendant’s conduct at issue occurred in 2008, those amendments do not apply here. See id. at § 3 (amendments to ORS 136.425 apply to offenses committed after January 1, 2010). Throughout the remainder of this opinion, references to that statute are to the 2007 version.
ORS 163.427 provides,in pertinentpart,that“[a] person commits the crime of sexual abuse in the first degree when that person * * * [sjubjects another person to sexual contact and *** [t]he victim is less than 14 years of age[.]”
ORS 163.305(6), in turn, provides:
“‘Sexual contact’ [(as used in ORS 163.427)] means any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party.”