State v. Beckner

744

Submitted December 6, 2018, reversed and remanded with instructions to

enter judgment of conviction for third-degree sexual abuse and for resentencing

April 29, petition for review denied August 27, 2020 (366 Or 826)

STATE OF OREGON,

Plaintiff-Respondent,

v.

BRANDON TAYLOR BECKNER,

Defendant-Appellant.

Linn County Circuit Court

16CR35023; A164610

466 P3d 1000

Defendant was convicted of one count of sexual abuse in the first degree,

ORS 163.427, and sentenced to life in prison without the possibility of parole. On

appeal, he argues that the trial court erred in denying his motion for judgment of

acquittal, because the evidence was insufficient to establish forcible compulsion.

Viewed in the light most favorable to the state, the evidence showed that defen-

dant approached the victim in a women’s restroom, placed a finger to his lips in

a “stay quiet” gesture, grabbed the victim by the hips with both hands, and then

put both hands on her breasts. The victim fled the restroom as soon as defendant

touched her breasts. Held: The trial court erred in denying the motion for judg-

ment of acquittal. Regarding defendant’s finger-to-lips gesture, the evidence was

insufficient to establish that that gesture was an express or implied threat that

placed the victim in fear of immediate or future death, physical injury, or kidnap

and caused her to submit to the touching of her breasts. Regarding defendant’s

grabbing of the victim’s hips, the evidence was insufficient to establish that that

unwanted contact was an act of physical force that compelled the victim to submit

to the touching of her breasts.

Reversed and remanded with instructions to enter judgment of conviction for

third-degree sexual abuse and for resentencing.

Daniel R. Murphy, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Morgen E. Daniels, Deputy Public Defender,

Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Susan G. Howe, Assistant Attorney

General, filed the brief for respondent.

Before DeHoog, Presiding Judge, and Egan, Chief Judge,

and Aoyagi, Judge.

Cite as 303 Or App 744 (2020) 745

AOYAGI, J.

Reversed and remanded with instructions to enter judg-

ment of conviction for third-degree sexual abuse and for

resentencing.

746 State v. Beckner

AOYAGI, J.

Defendant was convicted of one count of sexual

abuse in the first degree, ORS 163.427, and sentenced to

life in prison without the possibility of parole. On appeal,

he assigns error to the trial court’s denial of his motion

for judgment of acquittal, asserting that there was insuf-

ficient evidence of forcible compulsion. He also challenges

his sentence as constitutionally disproportionate, citing the

nature of the offense, the specifics of his criminal history,

and his significant mental health issues. For the reasons

that follow, we agree that the trial court erred in denying

the motion for judgment of acquittal. Given our disposition,

we do not reach defendant’s other assignment of error. We

reverse and remand for the trial court to enter a conviction

for sexual abuse in the third degree, ORS 163.415, and for

resentencing.

FACTS

In reviewing the denial of a motion for judgment of

acquittal, we view the evidence in the light most favorable

to the state to determine whether a rational factfinder could

find that the state had proven the essential elements of the

offense beyond a reasonable doubt. State v. Lupoli, 348 Or

346, 366, 234 P3d 117 (2010). We state the facts in accor-

dance with that standard.

Defendant entered a women’s restroom in a mar-

ket building in Albany and went inside one of the stalls.

Subsequently, the victim, who worked in the building, came

into the restroom. She noticed that one of the stalls was occu-

pied. The victim went into the fifth stall, used the toilet, and

exited the stall. As she was walking to the sinks, the victim

saw a head pop up from the occupied stall. She did not see the

person, but it seemed odd. She went to the far right sink clos-

est to the door and started washing her hands. While washing

her hands, the victim looked in the mirror and saw defendant

come out of the occupied stall and approach her from behind.

At that point, she could see clearly that it was a man. The vic-

tim, who is 5' 7", described the man as a “little bit taller” than

her and “a bit thicker * * * [b]ut not fat.” Defendant silently

put his finger to his lips. The victim was “shocked” and “star-

tled” by the gesture, which she interpreted as threatening

Cite as 303 Or App 744 (2020) 747

and understood to mean “stay quiet.” If he had not made the

gesture, she would have thought he was “someone who associ-

ates with being a woman.” Once he made the gesture, she did

not know his intentions.

As the victim turned to face him, defendant grabbed

the victim’s hips with both of his hands in “a pretty firm

grab” for “maybe a couple of seconds.” The victim was “just

so in shock” when he grabbed her hips that she “felt like [she]

couldn’t move.” Defendant released her hips and grabbed her

breasts with both hands. He grabbed her breasts less firmly

than he had her hips. As soon as defendant touched her

breasts, the victim turned and ran out the door. Defendant

did not tighten his grip or do anything to try to stop her

leaving. The victim could not say whether the entire inci-

dent lasted more or less than 10 seconds; she could only say

that everything happened “very quickly.”

Defendant was charged with one count of sex-

ual abuse in the first degree. Specifically, the indictment

charged him with “unlawfully and knowingly, by means of

forcible compulsion, subject[ing the victim], to sexual con-

tact by touching her breasts, a sexual or intimate part of

[the victim].” See ORS 163.427(1)(a)(B) (“A person commits

the crime of sexual abuse in the first degree when that

person * * * [s]ubjects another person to sexual contact and

* * * [t]he victim is subjected to forcible compulsion by the

actor[.]”). “Forcible compulsion” is compulsion by either

(1) “physical force,” or (2) “[a] threat, express or implied, that

places a person in fear of immediate or future death or phys-

ical injury to self or another person, or in fear that the per-

son or another person will immediately or in the future be

kidnapped.” ORS 163.305(1).1

Defendant waived jury and proceeded to a bench

trial. At the close of the state’s evidence, defendant moved

for a judgment of acquittal, arguing that the evidence was

insufficient to prove forcible compulsion and that, conse-

quently, the court should consider only the lesser-included

offense of third-degree sexual abuse. See ORS 163.415(1)

(“A person commits the crime of sexual abuse in the third

1

ORS 163.305 was amended in 2017, but those amendments do not affect our

analysis, so we refer to the current version of the statute.

748 State v. Beckner

degree if * * * [t]he person subjects another person to sexual

contact and * * * [t]he victim does not consent to the sexual

contact[.]”). The state opposed the motion. It argued that, by

grabbing the victim’s hips, defendant physically compelled

her to submit to the grabbing of her breasts. Alternatively,

the state pointed to defendant’s finger-to-lips gesture as a

threat of harm.

The trial court denied defendant’s motion. The

court explained that its interpretation of the caselaw was

that forcible compulsion comes down to whether the victim

was “reasonably coerced under the circumstances,” which

is a “contextual determination.” The court then identified

the evidence that it considered relevant to the analysis and

concluded that the victim reasonably felt coerced in these

circumstances:

“[S]he’s alone with a man in a bathroom where he has no

business being, and he’s telling her through a gesture to

be silent. The reasonable person would be coerced by that.

A reasonable person would find that to be a coercive act

under those circumstances. He then—if there was any

doubt up until then, the doubt totally evaporates as soon

as he grabs her by the hips. As soon as he grabs her by

the hips, he is now exercising coercive physical control over

her, which not only significantly exacerbates the level of

coercion but also removes any ambiguity that may have

previously existed concerning the meaning of his shushing

gesture or anything else that he did. At that point there is

complete reasonable objective and subjective basis for fear

and coercion.”

The trial proceeded. Sitting as factfinder, the trial

court found defendant guilty of sexual abuse in the first

degree. He was convicted and sentenced to life in prison

without the possibility of parole.2

ANALYSIS

On appeal, defendant assigns error to the trial

court’s denial of his motion for judgment of acquittal on

2

“The presumptive sentence for a sex crime that is a felony is life imprison-

ment without the possibility of release or parole if the defendant has been sen-

tenced for sex crimes that are felonies at least two times prior to the current sen-

tence.” ORS 137.719(1). Sexual abuse in the first degree is a Class B felony, ORS

163.427(2), and defendant has two prior convictions for felony public indecency.

Cite as 303 Or App 744 (2020) 749

first-degree sexual abuse, arguing that the evidence was

insufficient to establish forcible compulsion. Specifically,

defendant argues that the evidence was insufficient to

establish (1) that his grabbing of the victim’s hips was an

act of physical force that compelled the victim to submit to

defendant’s grabbing of her breasts, or (2) that his finger-to-

lips gesture was a threat of death, physical injury, or kidnap

that compelled the victim to submit to defendant’s grabbing

of her breasts. The state responds that the evidence was suf-

ficient to prove forcible compulsion, because it showed that

defendant used the element of surprise, an implicit threat of

harm, and the physical force of grabbing the victim’s hips to

“immobilize” the victim in order to grab her breasts.

This is a difficult case that requires a close analysis

of the requirements to establish forcible compulsion for the

crime of first-degree sexual abuse, ORS 163.427(1)(a)(B).

Ultimately, however, we agree with defendant that the state’s

evidence was insufficient to establish forcible compulsion.

There is no question that the evidence was suffi-

cient to establish sexual abuse. That is, defendant does not

dispute (nor could he) that there was evidence that he sub-

jected the victim to nonconsensual sexual contact when he

grabbed her breasts. The only question on appeal is whether

there was evidence that defendant used forcible compulsion,

i.e., that he compelled the victim to submit to the grabbing

of her breasts by using either “physical force” or a qualifying

“threat.” ORS 163.305(1).

Given the sequence of events, we begin with whether

the evidence was sufficient to establish forcible compulsion

by threat. Not all threats qualify for forcible compulsion.

Rather, the statute requires “[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.” ORS 163.305(1)(b). In light of the statutory

context, the threat must go beyond the threat of sexual con-

tact itself. That is, forcible compulsion by threat requires

the perpetrator to say or do something that places the vic-

tim in fear that she or someone else will be killed, physically

injured, or kidnapped unless she submits to or engages in

750 State v. Beckner

the sexual contact. It is not enough that the perpetrator says

or does something that places the victim in fear that the

perpetrator is going to sexually touch her.3

Here, defendant placed a finger to his lips in a “stay

quiet” gesture as he silently approached the victim from

behind while they were alone in a women’s restroom. That

is an incredibly unsettling thing to experience. The victim

perceived the gesture as threatening, and there is no dis-

pute that such a gesture in such circumstances reasonably

would cause a person to feel fear and trepidation, as the

victim did. However, the statute requires more than gen-

eralized fear and trepidation, or even a fear of imminent

nonconsensual contact. The statute requires the defendant

to have made an express or implied threat of immediate or

future death, physical injury, or kidnapping of the victim or

another person. ORS 163.305(1)(b); see also State v. Magel,

246 Or App 725, 734-35, 268 P3d 666 (2011) (concluding

that the evidence was insufficient to support a conviction

for first-degree rape based on forcible compulsion by threat,

where the victim subjectively believed that the defendant

would physically force her to engage in sexual intercourse if

she tried to resist, but where the defendant had not actually

said or done anything that “qualif[ied] as an implied threat

in the legal sense”).

The evidence in this case was insufficient to meet

that legal standard. The victim did not testify that defen-

dant putting his finger to his lips caused her to fear that he

would kill, physically injure, or kidnap her unless she sub-

mitted to unwanted sexual contact.4 Nor could a factfinder

reasonably infer that, when defendant put his finger to his

lips, he was implicitly threatening to kill, physically injure,

3

We express no opinion as to whether, in a different statutory context, a

threat of unwanted sexual contact might constitute a threat of “physical injury.”

In this context—a statute in which sexual abuse is a given and only the degree of

the crime is at issue—it is evident that the legislature intended a threat of “phys-

ical injury” to mean injury beyond the sexual contact itself. Otherwise, every act

of sexual abuse would be forcibly compelled by threat, because, at some point, the

victim would fear that she was about to be sexually abused.

4

The victim did testify to a generalized “concern” that “possibly” “some-

thing” could happen to her if she ran out of the restroom. As discussed, however,

ORS 163.305(1)(b) requires more than generalized fear and trepidation.

Cite as 303 Or App 744 (2020) 751

or kidnap the victim if she did not submit to sexual contact.

The line between speculation and reasonable inference is

“sometimes faint” and may be “difficult to articulate with

precision,” but “we have held evidence insufficient to sup-

port an inference when the conclusion to be drawn from it

requires too great an inferential leap.” State v. Bivins, 191

Or App 460, 467-68, 83 P3d 379 (2004) (internal quotation

marks omitted). Here, inferring that, when defendant put

his finger to his lips, he was threatening to kill, physically

injure, or kidnap the victim if she did not submit to sex-

ual contact is too great an inferential leap.5 The evidence

was therefore insufficient to establish forcible compulsion by

threat as defined in ORS 163.305(1)(b).

The next question is whether the evidence was suf-

ficient to establish forcible compulsion by physical force.

Forcible compulsion by physical force occurs when a person

uses “physical force” to “compel” someone to “submit to or

engage in” sexual contact. ORS 163.305(1)(a); see State v.

Marshall, 350 Or 208, 217-18, 253 P3d 1017 (2011) (conclud-

ing that, although ORS 163.427 does not specify what the

victim is being forcibly “compelled” to do, the “only possible”

meaning in context is that the victim is being compelled by

force to “submit to or engage in” sexual contact). The state

is no longer required to prove that the person used enough

physical force to “overcome earnest resistance,” as was

required prior to 1999. ORS 163.305(2) (1997) (“ ‘Forcible

compulsion’ means physical force that overcomes earnest

resistance * * *.”). Rather, the state must prove that the per-

son used enough force to overcome the victim’s will, i.e., the

victim’s desire not to engage in the sexual contact, regard-

less whether the victim was actively resisting, passively sub-

mitting to, or unwillingly engaging in the sexual contact.

Marshall, 350 Or at 225 (stating that the statute requires

the use of physical force “of a degree or quality that is suffi-

cient to compel the act at issue—sufficient, that is, to cause

5

We note that defendant and the victim were strangers to each other, so

defendant’s gesture carried no special significance. The victim understood it to

have its usual meaning of “stay quiet.” See State v. Jimenez, 247 Or App 738,

745-46, 270 P3d 405 (2012) (considering earlier interactions between the vic-

tim and the defendant as relevant to whether defendant’s conduct involved an

implicit threat).

752 State v. Beckner

a victim to submit to, or to engage in, the sexual contact

against his or her will” (emphasis in original)).6

How much force was necessary to overcome the

victim’s will is ordinarily a question of “degree” and highly

context dependent. Id. The force “need not [have risen] to

the level of violence,” but it “must [have been] sufficient to

‘compel’ the victim, against the victim’s will, to submit to or

engage in the sexual contact.” Id. Factors such as the vic-

tim’s age, differences in age, size, and strength between the

victim and the defendant, and the relationship between the

victim and the defendant all may be relevant to whether

the amount of force was “sufficient to ‘compel’ [the victim] to

submit to or engage in a sexual contact against his or her

will.” Id. at 226; see, e.g., State v. O’Hara, 251 Or App 244,

250-51, 283 P3d 396 (2012), abrogated on other grounds by

State v. Varnornum, 354 Or 614, 317 P3d 889 (2013) (hold-

ing that there was sufficient evidence of forcible compulsion

where the defendant, a physically large man in his mid-40s,

used his body weight to push the teenaged victim down onto

a bed, and then held her arms above her head while having

intercourse with her). The force used by the defendant also

must have been “greater than or qualitatively different from

the simple movement and contact that is inherent in the

action of touching an intimate part of another.” Marshall,

350 Or at 227.

In addition to needing to prove that the perpetrator

used enough physical force to overcome the victim’s will—

however much force that might have been under the par-

ticular circumstances—the state also must prove a causal

relationship between the defendant’s use of physical force

and the victim’s submission to or engagement in the sexual

contact. Id. at 217. In Marshall, the state argued against

a causation requirement, asserting “that first-degree sex-

ual abuse can be proved by showing an act of physical com-

pulsion that was part of the circumstances surrounding

6

The “earnest resistance” requirement was removed due to its deleterious

effects on victims of sexual assault. Marshall, 350 Or at 223 (describing the legis-

lative history of the 1999 amendment, including that it was “promoted by a group

of rape victim advocates and district attorneys, who argued that the requirement

of proving earnest resistance was unfair to, and actually could endanger, victims

of sexual assault”).

Cite as 303 Or App 744 (2020) 753

the particular sexual contact at issue, without regard to

whether the act of compulsion had any causal relationship

to the sexual contact.” Id. at 216. The Supreme Court dis-

agreed, expressly concluding that ORS 163.427 requires a

causal relationship between the defendant’s use of physical

force and the victim’s submission to or engagement in the

sexual contact. Id. at 217-18. It is not enough that “the sexual

contact be accompanied by some degree of forcible compul-

sion,” id. at 216 (emphasis in original), or that the “totality of

the circumstances” included some act of forcible compulsion,

id. at 214-15. The use of physical force must cause the victim

to submit to or engage in the sexual contact. Id. at 218.7

Turning to the facts of this case, we reiterate that

this is a difficult case, but we ultimately agree with defen-

dant that the evidence was insufficient to establish forcible

compulsion by physical force based on defendant’s grabbing

of the victim’s hips.

When defendant approached the victim in the rest-

room, he could have grabbed her breasts directly. Instead,

he grabbed her hips, released them, and then grabbed her

breasts. Although the two contacts occurred in close suc-

cession, they did not occur simultaneously, and the first

was not a necessary predicate to the second. As such, this

case directly implicates the causation issue addressed in

Marshall.

In Marshall, the Supreme Court explained that,

when a person engages in multiple nonconsensual contacts

with a victim, the fact that the person used physical force in

connection with one of the contacts is not enough to establish

forcible compulsion by physical force as to all subsequent

contacts. Id. at 219. Rather, the state must prove a causal

relationship as to each contact.

“[C]ontrary to the state’s argument, a single act of forcible

compulsion that accompanies multiple acts of sexual con-

tact does not necessarily transform each of those sexual

7

Of course, a single threat or a single act of physical force may compel a vic-

tim to submit to or engage in multiple sexual contacts. Marshall, 350 Or at 219.

For example, a person could threaten to kill someone unless she engages in both

oral sex and sexual intercourse, or a person could hold someone down while he

engages in both sexual intercourse and sodomy.

754 State v. Beckner

contacts into separate instances of first-degree sexual

abuse. Instead, for each of the sexual contacts that the

state charges, the state must rely on an act of ‘forcible com-

pulsion’ that bears some causal relationship to the sexual

contact: It must, in some sense, result in that particular

sexual contact.”

Id. (emphasis in original).

Applying that principle in Marshall, where the

defendant had been convicted of two counts of first-degree

sexual abuse based on two sexual contacts with the same

victim during the same criminal episode, the Supreme

Court concluded that there was sufficient evidence of forc-

ible compulsion for that issue to go to the jury on the first

charge, but not on the second charge. Id. at 227. The first

count was based on the defendant having forced the young

victim’s hand down his pants to make her touch his penis,

while the second count was based on the defendant hav-

ing grabbed the victim’s buttocks. Id. Although the defen-

dant’s use of physical force to force the victim’s hand down

his pants was sufficient to establish forcible compulsion for

the first count, it was insufficient to establish forcible com-

pulsion for the second count. Id. That is, even though the

defendant grabbed the victim’s buttocks after he had used

physical force against her, there was insufficient evidence

of a causal relationship between the two events, and so the

trial court erred in not granting the defendant’s motion for

judgment of acquittal on the second count. Id.

In this case, the defendant’s first nonconsensual

contact with the victim—grabbing her hips—was not

charged as an act of sexual abuse, whether as a matter of

prosecutorial discretion or because the state did not believe

that it could prove that that was “sexual contact.” See ORS

163.305(6) (defining “sexual contact” as including “any touch-

ing of the sexual or other intimate parts of a person * * * for

the purpose of arousing or gratifying the sexual desire of

either party”); State v. Woodley, 306 Or 458, 463, 760 P2d

884 (1988) (recognizing that what constitutes an “intimate

part” is largely subjective). That procedural wrinkle com-

plicates the forcible-compulsion analysis, in that it raises

the issue whether the first contact should be treated as non-

consensual sexual contact or just nonconsensual physical

Cite as 303 Or App 744 (2020) 755

contact. The distinction is potentially relevant, because

sexual contact that involves only the amount of force nec-

essary for the sexual contact itself is not an act of “physical

force” constituting forcible compulsion. Marshall, 350 Or at

227. Thus, in normal circumstances, if a person subjected

a victim to two different nonconsensual sexual contacts in

immediate succession—such as touching two different body

parts—the first contact would simply be its own act of sex-

ual abuse and would not constitute “physical force” for pur-

poses of the second contact.

Ultimately, however, we conclude that the distinc-

tion is one without a difference as far as the outcome of this

case. Whether defendant’s grabbing of the victim’s hips is

viewed as nonconsensual sexual contact or just noncon-

sensual physical contact, the fact remains that defendant

engaged in two nonconsensual contacts with the victim that

were separate and distinct in nature, albeit close together

in time. Even assuming that the hip-grabbing qualified as

an act of physical force (rather than another sexual contact),

the trial court’s forcible-compulsion ruling depends on an

overly broad view of causation that is inconsistent with the

statute.

In concluding that there was sufficient evidence

of forcible compulsion, the trial court wrongly focused on

whether the victim reasonably felt afraid and coerced during

her encounter with defendant. Any victim of nonconsensual

sexual contact may reasonably feel afraid and coerced, pre-

cisely because the contact is nonconsensual. See Marshall,

350 Or at 218-19 (trial court erred in relying on evidence

that the victim did not want the contact as evidence of forc-

ible compulsion). Nonconsensual sexual contact is criminal

regardless of whether it involves forcible compulsion. See

ORS 163.415(1) (subjecting another person to sexual contact

without the person’s consent is third-degree sexual abuse).

Forcible compulsion is an additional factor in some sexual

abuse cases, but the absence of forcible compulsion does not

mean that the victim was not afraid or that the victim was a

willing participant in the sexual abuse. The absence of evi-

dence of forcible compulsion means only that the defendant

did not engage in a particular use of physical force or make

a particular type of threat as part of the crime.

756 State v. Beckner

On appeal, the state presents a somewhat differ-

ent theory of forcible compulsion than the trial court relied

on. The state argues that there was sufficient evidence of

a causal relationship between defendant’s grabbing of the

victim’s hips and the victim’s submission to the grabbing

of her breasts, because the victim testified that, as soon as

defendant got so close to her (less than six inches away), she

would have run out of the restroom if he had not put his

hands on her hips. But, because the victim was so shocked

by defendant grabbing her hips, she hesitated before fleeing

the restroom, which allowed time for defendant to grab her

breasts.

There is a logical flaw in the state’s argument, in

that defendant did not need to grab the victim’s hips to keep

her there long enough to grab her breasts—he could have

just grabbed her breasts directly. Putting that aside, the

state’s view of causation is impermissibly broader than that

contemplated by Marshall.

Any type of unwanted touching is potentially shock-

ing and may cause a person to freeze as he or she considers

how best to negotiate the situation and get out of it. But,

relevant to forcible compulsion, the question, properly, is

not whether an act of unwanted touching gave the victim

pause and therefore created a window of opportunity for the

defendant to engage in a different act of unwanted touching.

The question is whether the defendant’s use of physical force

was such that it caused the victim to submit to or engage

in sexual contact. Marshall, 350 Or at 217-18 (what must

be compelled is the victim’s submission to or engagement

in the sexual contact); see, e.g., State v. Digesti, 267 Or App

516, 517-18, 522-23, 340 P3d 762 (2014) (there was sufficient

evidence to go to the jury on forcible compulsion, where the

48-year-old defendant used his foot to block the door and

physically struggled with the 15-year-old victim while he

sexually groped her and she tried unsuccessfully to escape).

Consider a simplified hypothetical. If a person

approached another person, touched her hand and made eye

contact, and then put his hands on her breasts, the victim

might well not run away until the unlawful sexual contact,

no matter how alarmed she was by the initial touch. For a

Cite as 303 Or App 744 (2020) 757

variety of reasons, it simply takes time to react in a confus-

ing situation. But that does not make the touching of the

victim’s hand an act of physical force that compelled the vic-

tim to submit to sexual contact for purposes of first-degree

sexual abuse. The unwanted touching of the hand might

have had the practical effect of delaying the victim’s reac-

tion to flee, but the touching of the hand alone would not be

enough to establish that the perpetrator used physical force

to compel the victim to submit to the sexual abuse. That

is, there is a difference between being startled by physical

contact into a slightly delayed reaction and being forcibly

compelled by physical force to submit to or engage in sexual

contact. Both situations involve crimes, but only the latter

involves first-degree sexual abuse by forcible compulsion by

physical force.

Here, the victim never suggested that she felt com-

pelled to submit to defendant touching her breasts because

defendant had previously grabbed her hips. To the contrary,

the victim fled the restroom as soon as defendant touched

her breasts. When defendant grabbed the victim’s hips,

she was “just so in shock” that she did not run out of the

restroom immediately. But, when he grabbed her breasts,

she overcame the shock and immediately turned, opened

the door, and ran away. On that record, there is no evidence

that the victim felt compelled to submit to the grabbing of

her breasts because of defendant’s earlier grabbing of her

hips. The possibility that she might have left the restroom

sooner if defendant had not shocked her by making physical

contact with her is not sufficient to establish causation for

forcible compulsion.

“[T]o prove that a particular sexual contact was

first-degree sexual abuse, the state must prove not only that

the defendant subjected the victim to an act of forcible com-

pulsion, but also that that act resulted in the sexual contact

that is the focus of the charge, in the sense that it compelled

the victim to submit to or engage in the contact.” Marshall, 350

Or at 227 (emphasis added). Here, the evidence was insuf-

ficient to establish that the victim felt compelled to submit

to the grabbing of her breasts because defendant grabbed

her hips. That two separate offensive touches occurred in

758 State v. Beckner

immediate succession is not enough to prove forcible com-

pulsion by physical force.

Finally, the state’s argument on appeal could be

read to suggest that, even if the evidence was insufficient

to establish forcible compulsion by threat and insufficient

to establish forcible compulsion by physical force, defen-

dant could still be convicted of first-degree sexual abuse

because the “element of surprise,” defendant’s gesture, and

the hip-grabbing combined to prolong the encounter. To

the extent that the state means to make that argument,

we reject it as inconsistent with the statute. Although jury

concurrence is not required as to the type of compulsion

used, State v. Sullivan, 253 Or App 103, 107-08, 288 P3d

1004 (2012)¸ rev den, 354 Or 814 (2014), the statute requires

a qualifying act of physical force or a qualifying threat.

ORS 163.305(1) (“ ‘Forcible compulsion’ means to compel by:

(a) Physical force; or (b) A threat [of the specified type].”). In

this case, the evidence was insufficient to establish either.

CONCLUSION

The trial court erred in denying defendant’s motion

for judgment of acquittal on the charge of sexual abuse in

the first degree, ORS 163.427. As both defendant and the

state agree, the proper remedy is to reverse and remand

with instructions for the trial court to enter a conviction for

third-degree sexual abuse, ORS 163.415, instead of first-

degree sexual abuse, ORS 163.427, and for resentencing.

See State v. Pittman, 276 Or App 491, 495, 369 P3d 99 (2016)

(“We have authority under the Oregon Constitution to direct

entry of a lesser-included offense that we determine should

have been entered by the trial court.”).

Reversed and remanded with instructions to enter

judgment of conviction for third-degree sexual abuse and for

resentencing.