Dеfendant appeals from a conviction, following a bench trial, on one count of second-degree sexual abuse, ORS 163.425. He raises two assignments of error. In his first assignment, defendant contends that the trial court erred in denying his motion for judgment of acquittal (MJOA) because there was legally insufficient evidence to corroborate his confession to the crime of second-degree sexual abuse.
See
ORS 136.425(1) (2007),
amended by
Or Laws 2009, ch 875, § l.
1
In his seсond assignment of error, defendant contends that the trial court erred in denying his MJOA because the state failed to prove that the victim did not actually consent to the sexual activity that predicated his conviction. We reject defendant’s second assignment of error without discussion,
see State v. Stamper,
The facts material to our analysis and disposition are undisputed. On the evening of December 24,2007, during the course of his investigation of “a male versus female dispute,” Portland Police Officer Tully learned that defendant, who was 21 at the time, was dating a 16-year-old girl, C. Tully arrested defendant for harassment and, while conducting an inventory of his person, discovered an empty condom wrapper in defendant’s left front pants pocket. After speaking to C, Tully transpоrted defendant to the police station for questioning.
At the police station, following advice of defendant’s Miranda rights, Tully asked defendant about the nature of his relationship with C. Defendant told Tully that he and C had been dating for 11 months, that C turned 16 years old on *217 December 11, and that “he loved her” — but denied ever having sexual intercourse with C because “he didn’t want the relationship to be like that.”
Tully, apparently unconvinced, then asked defendant when he last had sexual intercourse with C. At that point, defendant admitted that he and C had been having sexual intercourse. Most specifically, and pertinent to this appeal, defendant stated that they had last had sexual intercourse that morning at his house in Beaverton. Defendant also confirmed that the condom wrapper Tully had found in his pocket had contained the condom that he had used to have sexual intercourse with C that morning. Defendant acknowledged that he knew that C was 15 years old when they first started having sexual intercourse.
Ultimately, the state charged defendant with four counts of second-degree sexual abuse. ORS 163.425. That statute provided, in part: “A person commits the crime of sexual abuse in the second degree when that person subjects another person to sexual intercourse * * * and the victim does not consent thereto.” 2
At trial, Tully testified, recounting the facts described above. C did not testify. However, her mother, Kushner, and her cousin, Thomas, did testify for the state. Kushner stated that she had first learned that C and defendant were romantically involved — and defendant’s age— when she received a call from the assistant principal at her daughter’s high school who had wanted to make sure that Kushner “knew what was going on.” Later that same day, which was months before defendant’s arrest in December, C had brought defendant home after school. Kushner spoke with defendant, telling him “the age thing was not okay” and that she disapproved of their relationship. According to Kushner, defendant responded that he “understood.” Kushner testified that, although she had believed that C and *218 defendant had ended their relationship at that point, she learned months later that they had, in fact, continued dating.
Kushner also testified that, because of her inconsistent work schedule, there were times when C would be home alone and that defendant could have come over without her knowledge. Kushner further testified that, at some point, after she received the call from the assistant principal — the specific timing is unclear from the record — she discovered an empty condom wrapper in her living room and had asked C about it. 3 There was no evidence that that condom wrapper was the same type or variety as the one later found during the inventory of defendant’s person.
Thomas, C’s cousin, testified that she had spent time with, or encountered, defendant and C together on four occasions — and that, on one of those occasions, C and defendant had been alone at the apartment C shаred with her mother. Thomas testified that it was apparent on those occasions that C and defendant were dating because she would see them “holding hands, kissing, [and] acting like boyfriend and girlfriend.” Finally, Thomas testified about a conversation that she had had with defendant not long before he was arrested on the harassment charge. According to Thomas, she had talked to defendant about C’s age and warned him that “he better be safe so nothing happens because [she didn’t] want to see him get hurt or [C],” and that, “if they were having sexual intercourse, that they better be careful and make sure that it doesn’t, like, get beyond their friends and stuff so that it doesn’t end up like [this criminal case].” Defendant replied that he understood.
At the close of the state’s presentation of evidence, the state elected to identify each of thе counts of second-degree sexual abuse with the specific evidence adduced at trial. The state clarified that Count 1 — the count that is the subject of this appeal — alleged that defendant had sexual intercourse with C on December 24, 2007, the day defendant was arrested for harassment. Count 2 referred to defendant’s alleged sexual intercourse with C corresponding with the *219 empty condom wrapper that Kushner found on the living room floor in her and C’s apartment. Counts 3 and 4, individually, referred to incidents of alleged sexual intercourse that occurred at “separate time[s] aside” from the other counts.
Defendant subsequently moved for judgment of acquittal as to each of the four counts, invoking both
State v. Delp,
The state countered that defendant’s inculpatory admissions were sufficiently corroborated by a combination of physical and testimonial evidence. Specifically, the state pointed to (1) the two condom wrappers (the one found in defendant’s pants pocket on December 24, 2007, and the other, found in the apartment); (2) evidence (primarily from Thomas) that C and defendant were in a physically demonstrative relationship, and that defendant and C had opportunities to spend time alone together; and (3) defendant’s “tacit admissions” to Kushner and Thomas acknowledging that “he could get in trouble” for his relationship with C.
The trial court granted defendant’s MJOA on Counts 2, 3, and 4, but denied the motion as to Count 1 — again, the count corresponding to defendant’s confession that he had sexual intercourse with C the morning of December 24,2007. Specifically, the trial court found that evidence that defendant and C “were boyfriend and girlfriend,” defendant’s tacit admissions to Kushner “that some kind of a relationship was going on and to * * * Thomas that an intimate relationship was occurring,” and the empty condom wrapper found on defendant’s person that evening, including defendant’s identification of that wrapper as corresponding to his intercourse with C that morning, corroborated defendant’s confession as to Count 1. The trial court then convicted defendant on that count of second-degree sexual abuse.
On appeal, defendant contends that the evidence relied on by the trial court was legally insufficient to corroborate his confession as to Count 1. In particular, defendant *220 argues that his identification of the condom wrapper found in his pocket as the one containing the condom he had used with C the morning of December 24, 2007, was part of his confession and, thus, could not be relied on for corroboration. Defendant further contends that the remaining evidence relied on by the trial court “was insufficient to suрport an inference that [C] was subjected to the specific criminal harm alleged” — viz., that defendant engaged in sexual intercourse with C.
The state does not dispute that the trial court erred in including defendant’s identification of the empty condom wrapper in the corroborative “mix,” because defendant’s statements in that regard are properly deemed to be part of his confession and, thus, could not corroborаte it. Nevertheless, the state maintains that the remaining evidence— particularly the empty condom wrapper itself — provides sufficient, independent corroboration of defendant’s confession. The state further contends that, assuming additional corroboration is needed, certain of defendant’s statements before he explicitly admitted to engaging in intercourse with C — viz., that he and C had been dating 11 months, that he loved C, and that C had turned 16 years old on December 11 — are “admissions” separate and apart from the confession and, as such, may also be used to corroborate defendant’s confession.
We conclude, as amplified below, that the state adduced legally sufficient corroboration of defendant’s confession that he had engaged in sexual intercourse with C on December 24, 2007. In that regard, and without reference to other evidence proffered by the state, the empty condom wrapper found on defendant’s person on the evening of December 24,2007, coupled with the evidence that defendant and C were in an ongoing, physically demonstrative romantic relationship that had continued over a period of months sufficiently corroborate defendant’s confession as to the conduct alleged in Count 1.
Under ORS 136.425(1) (2007), which applied to the charge at issue here, a defendant’s conviction could not be predicated solely on an uncorroborated confession. That statute provided, in part:
*221 “A confession or admission of a defendant * * * cannot be given in evidence against the defendant 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 other proof that the crime has been committed.”
(Emphasis added.) To satisfy the corroboration requirement of ORS 136.425(1) (2007), the state was required to adduce evidence, independent from the confession, “that
tends
to prove or establish” the
corpus delicti
of the pertinent offense — that is, that (1) the injury or harm specified in the crime occurred and (2) the injury or harm was cаused by someone’s criminal activity.
State v. Lerch,
Here, defendant was charged with second-degree sexual abuse for having sexual intercourse with C, a charge predicated on C’s inability to consent to that intercourse because she was under 18 years of age.
See
ORS 163.425 (2007) (defining second-degree sexual abuse); ORS 163.315 (providing that a person is legally incapable of consenting if,
inter alia,
the person is “[u]nder 18 years of age”). Thus, the state must have adduced “enough evidence from which the [factfinder] may draw an inference that tends to establish or prove,”
Lerch,
Here, the state adduced evidence that, on the evening of December 24, 2007, defendant had an empty condom wrapper in one of his pants pockets. That supportеd a reasonable inference that defendant had recently engaged in intercourse with
someone.
To be sure, that is not the only reasonable, or necessary, inference — but that is not required.
See, e.g., Fry,
The inquiry thus reduces to whether the state adduced evidence “tendfing]” to show,
Lerch,
Defendant’s reliance on our decisions in
State v. Campbell,
Our decision in
Delp
is representative. There, the defendant was charged with, among other offenses, two counts of first-degree sodomy and one count of first-degree sexual abuse based on a confession he gave to police.
To corroborate the defendant’s confession, the state relied on evidence that the defendant had access to the alleged victim when no other adults were present in the home, including on the specific day that the defendant had confessed to using the pink towel, and that a laundered pink towel was found and seized from the home. Id. at 27. According to the state, that evidence demonstrated that the defendant “had the means and the opportunity to commit the two charges of sodomy and the one charge of sexual abuse” with the child. Id. (internal quotation marks omitted). Additional evidence from the defendant’s explicit online conversations and his possession of child pornography showed that the defendant was attracted to young сhildren. Id.
We held that the state’s proffered independent evidence was legally insufficient to corroborate the defendant’s confession. Id. at 29-30. In particular, we held that the proffered evidence did not tend to show that the harm or injury of the corpus delicti for the first-degree sodomy and sexual abuse charges, which required that the alleged victim be subjected to “deviate sexual intercourse” and “sexual contact,” respectively, actually occurred. We observed:
*224 “None of the evidence offered by the state independent of the confession tends to demonstrate or gives rise to an inference that the alleged victim was the subject of the specific acts of sodomy and sexual abuse set forth in the indictment. Said another way, no reasonable juror could infer from [the] defendant’s possession of child pornography, his sexual interest in children, the existence of a recently laundered pink towel, and [the] defendant’s opportunity to commit the crimes, that the child was the victim of sodomy or sexual abuse, whether those facts are considered separately or together.”
Id.
at 29 (footnote omitted).
See also
Campbell,
Herе, in contrast, the corroborating evidence does tend to show that the harm alleged — that C was subjected to sexual intercourse while she was incapable of giving consent — did, in fact, occur. Unlike the evidence at issue in
Campbell, Delp,
and
Simons,
here, the physical evidence — an empty condom wrapper found on
defendant
— is specifically indicative of the act of sexual intercourse, the physical act underlying the second-degree sexual abuse charge. Moreover, unlike the evidence in
Delp
and
Simons
that the alleged victims fell into a class of persons to whom the defendants were
generally
attracted, the evidence in this case is that defendant was specifically attracted to — and, indeed, was actively involved in an ongoing, physically demonstrative relationship with — C.
Cf. Campbell,
We conclude by reiterating our observation in
State v. Muzzy,
Affirmed.
Notes
The 2007 version of ORS 136.425(1) provided, in part:
“A confession or admission of a defendant * * * cannot be given in evidence against the defendant 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 other proof that the crime has been committed”
(Emphasis added.) The language of the statute italicized above, which is central to the issue discussed in this case, was materially altered in 2009. See Or Laws 2009, ch 875, § 1. However, those amendments do not apply here. Id. § 3 (amendments to ORS 136.425 apply to offenses committed after January 1,2010).
The four charges were nearly identical; each alleged that, in “a separate act and transaction,” from the conduct alleged in the other counts, “defendant, on or between December 11,2006 to December 24,2007, in Washington County, Oregon, did unlawfully and knowingly subject [C] to sexual intercourse, [C] not consenting thereto by reason of being under 18 years of age.”
To avoid potential hearsay issues that could arise because C did not testify at trial, the state agreеd to have its witnesses avoid testifying as to any statements C made to them.
We fully appreciate that the state’s proffered corroboration partakes, to some extent, of a “stacking of inferences.” In that regard, we emphasize that here, unlike in some other cases in which we have expressed concerns about that dynamic,
see, e.g., State v. Lupercio-Quezada,