State v. SullivanState v. Sullivan
- Reporters:
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- Before:
- Wollheim
A jury found defendant guilty of two counts of sodomy in the first degree,
“We review a trial court’s refusal to give a requested instruction for errors of law in light of the facts that are most favorable to defendant.” State v. Greeley, 220 Or App 19, 21, 184 P3d 1191 (2008).
Defendant and the victim met in the summer of 2007, when the victim was 13 years old and defendant was 35, and they lived in the same trailer park. At trial, the victim testified that one time defendant made her get on her knees and suck his penis and that defendant said that he would kill her if she did not comply. The victim said that the sexual encounter ended when defendant ejaculated and forced her to swallow the ejaculate. The victim also testified that, a few days later, in defendant’s bedroom, defendant made her pull her pants down and defendant penetrated her anally, causing her to bleed. The victim said that that sexual encounter ended when he ejaculated. The victim said that, although defendant did not threaten her during the second incident, she was still scared of defendant from the first incident.
In the state’s closing argument, the prosecutor stated:
“Now, the Judge described to you what forcible compulsion was, and you heard the testimony. As far as the definition of forcible compulsion goes, to compel by either physical force or a threat, express or implied, that places a person in fear of immediate or future death or physical injury.
“We know that she testified that he took her head and forced it down to his exposed penis. That’s using physical force. In addition to that, she stopped, attempted to scream, he told her ‘I’ll kill you.’ That’s a threat. That’s not actually an implied threat, that’s an express threat.
“After it was completed and he had ejaculated, he said to her, ‘Don’t tell anyone. I’ll kill you.’ * * * [W]hen he flips her over the next time and puts her down on the bed, she still is going under that implied threat. That’s what constitutes the force.”
Defendant argued that the state presented two different theories about how the jury could find forcible compulsion — physical force or a threat — and therefore the jury should have been instructed to find that defendant used one type of forcible compulsion before the jury could find that defendant committed the crime of sodomy in the first
On appeal, defendant challenges his convictions for sodomy in the first degree, arguing that the trial court erred in denying his requested instruction. The state asserts that the trial court did not err. Accordingly, we begin our analysis with an overview of the law related to when a trial court is required to give such a jury instruction.
In State v. Boots, 308 Or 371, 373, 780 P2d 725 (1989), an aggravated murder case, the Supreme Court held that it was error for the trial court to instruct the jury that it need not agree on the factual circumstance that made the homicide aggravated murder as distinct from simple murder. The indictment had charged two theories of aggravated murder: that the homicide was committed in the course and in furtherance of committing robbery in the first degree, under
The decisive question in reviewing the court’s rejection of defendant’s requested instruction is whether the jury was allowed to base its verdict on alternative factual occurrences, each of which would be a separate crime, or whether the state merely presented alternative evidence to establish a single element of the offense. Greeley, 220 Or App at 24. For example, in State v. King, 316 Or 437, 446, 852 P2d 190 (1993), overruled in part on other grounds by Farmers Ins. Co. v. Mowry, 350 Or 686, 261 P3d 1 (2011), the court concluded that the trial court did not err in denying the defendant’s requested instruction because
Turning to the statutes at issue in this case,
“A person who engages in deviate sexual intercourse with another person or causes another to engage in deviate sexual intercourse commits the crime of sodomy in the first degree if:
“(a) The victim is subjected to forcible compulsion by the actor [.]”
“(a) Physical force; or
“(b) A threat, express or implied, that places a person in fear of immediate or future death or physical injury to self or another person, or in fear that the person or another person will immediately or in the future be kidnapped.”
Reading the statutes together,
Accordingly, we conclude that the state was entitled to present evidence that defendant engaged in forcible compulsion by physical force or by threat, and the trial court did not err in denying defendant’s requested jury instruction.
Affirmed.
Notes
Defendant does not assign any error pertaining to his convictions for second-degree sodomy.
Defendant also argues that nonunanimous jury verdicts are unconstitutional. We reject that argument, as we have in the past. State v. Cobb, 224 Or App 594, 596-97, 198 P3d 978 (2008), rev den, 346 Or 364 (2009).