State v. Wallace

704

Argued and submitted February 9, 2021; Counts 2 through 5 reversed,

remanded for resentencing, otherwise affirmed September 14, 2022

STATE OF OREGON,

Plaintiff-Respondent,

v.

CHANCE NEAL WALLACE,

Defendant-Appellant.

Jackson County Circuit Court

17CR27381; A170354

517 P3d 323

Defendant appeals his conviction of rape in the first degree based on forcible

compulsion, as well as a guilty verdict of rape in the first degree and convic-

tions of two counts of sodomy in the first degree and one count of sexual abuse

in the first degree based on the victim’s inability to consent by reason of men-

tal defect. Defendant challenges the trial court’s denial of his motion for mis-

trial on all the counts based on his contention that the trial court erroneously

admitted testimony that implicated his right to remain silent. He also challenges

the court’s submission to the jury of the counts that were based on the victim’s

inability to consent to the alleged sexual conduct, contending that the trial court

erred in denying his motion for a judgment of acquittal on those counts based

on the state’s failure to prove that the victim did not have the ability to consent.

Held: The Court of Appeals rejected defendant’s contention that he was entitled

to a mistrial, concluding that the challenged testimony was not a comment on

defendant’s right to remain silent. But the court agreed with defendant that the

evidence in the record is not sufficient to establish the state’s burden to show

that the victim lacked the ability to consent to sexual activity due to her mental

disability. The trial court therefore erred in denying defendant’s motion for judg-

ment of acquittal on the counts that were dependent on proof of that element.

Counts 2 through 5 reversed; remanded for resentencing; otherwise affirmed.

Lorenzo A. Mejia, Judge.

Shawn Wiley, Deputy Public Defender, argued the cause

for appellant. Also on the opening brief was Ernest G.

Lannet, Chief Defender, Criminal Appellate Section, Office

of Public Defense Services. Chance Neal Wallace filed the

supplemental brief pro se.

Kirsten M. Naito, Assistant Attorney General, argued

the cause for respondent. Also on the brief were Ellen F.

Rosenblum, Attorney General, and Benjamin Gutman,

Solicitor General.

Cite as 321 Or App 704 (2022) 705

Before Mooney, Presiding Judge, and Egan, Judge, and

Pagán, Judge.*

EGAN, J.

Counts 2 through 5 reversed; remanded for resentencing;

otherwise affirmed.

Mooney, P. J., concurring and dissenting.

______________

* Egan, J., vice DeVore, S. J.; Pagán, J., vice DeHoog, J. pro tempore.

706 State v. Wallace

EGAN, J.

Defendant appeals from a judgment of conviction of

rape in the first degree, ORS 163.375 (2015), amended by

Or Laws 2021, ch 82, § 4 (Counts 1 and 2),1 two counts of

sodomy in the first degree, ORS 163.405 (2015), amended

by Or Laws 2021, ch 82, § 5 (Counts 3 and 4), and one count

of sexual abuse in the first degree, ORS 163.427 (2015),

amended by Or Laws 2021, ch 82, § 7 (Count 5). Under the

statutes defining the offenses, they are committed if the vic-

tim “is subjected to forcible compulsion,” ORS 163.375(1)(a)

(2015), or, alternatively, if the victim “is incapable of consent

by reason of mental defect” ORS 163.375(1)(d) (2015), or by

reason of “being mentally defective.” ORS 163.427(1)(a)(C)

(2015).2 The guilty verdict on Count 1 was based on forceable

compulsion, and the guilty verdicts on Counts 2 through 5

were based on the victim’s inability to consent. Defendant

challenges the trial court’s denial of his motion for mistrial

on all the counts. He also challenges the court’s submission

to the jury of Counts 2 through 5, which were based on the

victim’s inability to consent to the alleged sexual conduct,

contending that the trial court erred in denying his motion

for a judgment of acquittal (MJOA) on those counts based on

the state’s failure to prove that the victim did not have the

ability to consent.

We have considered and reject without discussion

the arguments raised by defendant in his pro se supplemen-

tal brief. As discussed in more detail below, however, we con-

clude that some of the assignments of error in defendant’s

opening brief are well taken and require a reversal of the

guilty verdict on Counts 2 and the convictions on Counts 3

through 5.

We first address defendant’s fifth assignment of

error, which relates to all the counts, and in which he contends

1

The guilty verdict on Count 2 was merged into a single conviction on Count 1.

2

We note that ORS 163.375, ORS 163.405, and ORS 163.427 have been

amended since the charged crimes were committed, and now refer to a person’s

inability to consent “by reason of being mentally incapacitated, physically help-

less or incapable of appraising the nature of the victim’s conduct.” Or Laws 2021,

ch 82, §§ 4-7. References to the statutes throughout this opinion are to the ver-

sions in effect at the time of the charged crimes.

Cite as 321 Or App 704 (2022) 707

that the trial court abused its discretion in denying his

motion for a mistrial. Defendant moved for a mistrial after

the court received into evidence the testimony of Detective

Sandler in response to the prosecutor’s question whether

defendant had said anything at the time of his arrest.

Sandler testified:

“No. I did place him into handcuffs, which were immedi-

ately checked for tightness and double locked, to make sure

they wouldn’t tighten up on him. At 1250 hours, I advised

him of his rights per Miranda, and he told me that he had

already given me a statement and he had nothing addi-

tional to say.”

Defendant asserts that Sandler’s response constituted a

comment on his invocation of the right to remain silent and

from which the jury could infer guilt. We have reviewed the

record and reject the contention. Before the arrest, Sandler

interviewed defendant by telephone, during which defen-

dant had denied having had sexual relations with the vic-

tim, J, and asserted that she had made up the allegations.

In light of having heard a recording of Sandler’s telephone

conversation with defendant, and in the context in which

defendant made the statement at the time of his arrest that

he had nothing additional to say, as described by Sandler in

her testimony, we conclude that it is unlikely that the jury

would have inferred that defendant was invoking the right

to remain silent, from which it could make an inference of

guilt. Additionally, we conclude that it is unlikely that the

jury would have understood Sandler’s testimony as a com-

ment on the right to remain silent. We note further that the

prosecutor did not highlight that testimony or even mention

it. Under those circumstances, we conclude that the trial

court did not err in determining that it was unlikely that

the jury would infer from the testimony that defendant had

invoked his right to remain silent, giving rise to an infer-

ence of guilt. See State v. Veatch, 223 Or App 444, 456, 196

P3d 45 (2008) (“Where the context makes such an inference

unlikely, the trial court does not abuse its discretion if it

denies the defendant’s motion for a mistrial.”). We therefore

reject defendant’s contention that the trial court abused

its discretion in denying his motion for a mistrial. With

our resolution of the fifth assignment of error, defendant’s

708 State v. Wallace

conviction on Count 1, based on forceable compulsion, is

affirmed.

Defendant’s remaining assignments of error chal-

lenge the trial court’s denial of his MJOA on Counts 2

through 5, based on the contention that the stated had failed

to present evidence sufficient to give rise to a jury question

as to whether J was unable to consent to the alleged sexual

conduct initiated by defendant and from which the charges

arise. In reviewing the denial of an MJOA based on the suf-

ficiency of the evidence, we “view the evidence in the light

most favorable to the state to determine whether a rational

trier of fact, making reasonable inferences, could have found

the essential elements of the crime proved beyond a reason-

able doubt.” State v. Reed, 339 Or 239, 243, 118 P3d 791

(2005). We summarize the evidence under that standard.

J was 28 years old at the time of trial. She was born

with fetal alcohol syndrome and suffered from viral pneu-

monia after she was born, which resulted in scar tissue in

her brain. As a result, J has an IQ of 62, and she has been

determined to have an intellectual disability.3 Although J

manages her personal care such as hygiene and dressing, as

a result of her disability, she needs help with many tasks of

daily life—she cannot live alone, shop for herself, or manage

her own transportation or finances. She requires support to

integrate into the community and socialize.

J lives with her grandmother, Boothe, who has

been her guardian since J was six months old. Boothe cares

for J full-time, except for four weekends each year, when

J attends a state-run program for people with mental dis-

abilities. During the brief periods that Boothe arranges for

respite care, J has six other caregivers who meet her needs.

J works part-time at Wal-Mart, watering plants

and reorganizing and restocking clothing. For two years,

a nonprofit organization provided J with a coach at work

to help with transitions and navigating her job duties. As

of the time of trial, J had worked two shifts without assis-

tance. J takes a taxi to and from work so that she does not

have to negotiate the bus system.

3

J has been diagnosed with “mild mental retardation.”

Cite as 321 Or App 704 (2022) 709

Because of J’s disability, she has poor short-term

memory. J gets lost easily, even around the block in her

neighborhood, and she does not go anywhere alone. She has

an optimistic view of people and is at a heightened risk to be

taken advantage of.

Defendant attended and worked in security at the

church that J attended with Boothe. Defendant started dat-

ing J after having been acquainted with her from church for

approximately one year.

Before she started dating defendant, J testified, she

was curious about sex and knew a little about sexual rela-

tions from watching movies.4 She knew that a man puts his

4

J explained her understanding of sexual relations on cross-examination by

defendant’s counsel:

“[DEFENSE COUNSEL]: So I want to ask you about some other terms to

see if you know what they mean. Virginity. What does that mean to you?

“A. To me from what I was told, was that it just means that, the person

has never experienced sex before another virgin, is sort of what I thought it

meant.

“Q. Okay. Then do you remember where you learned that word from?

“A. It seems like my grandmother, Bobbie. She would tell me a little bit

about what it would mean.

“Q. Okay. Could it be your mom?

“A. Seems like I remember it was her too. It was both of them.

“Q. It seems like from the [forensic] interview that you didn’t know

before what the word foreplay meant.

“A. Right. I’ve never—I’ve heard of foreplay, but I never, have never

really experienced it before.

“Q. Okay, the first time you heard that word was from [defendant]?

“A. Yeah.

“Q. Okay. Do you know what foreplay means now do you think?

“A. I don’t really know right now.

“Q. Okay, all right.

“A. Of what it really means.

“Q. And, going back to the term sex, do you know what the purpose is for

sex?

“A. Just two people that love each other and is married that makes love,

seems like what sex means to me anyway.

“Q. Okay, I don’t want to put words in your mouth so it would be fair to

say it’s a way two people express their love?

“A. Yeah.

“Q. Okay. And, how does that make them feel when they do that?

710 State v. Wallace

penis into a woman’s vagina and that babies are made that

way. J understands that it is “the Christian way” that a per-

son should not have sex before marriage. When asked by

defense counsel if she should be able to make her own choice

about whether to have sex with someone, J answered, “Yes,

you know, if I’m ready and if I was married.”

A jury could infer from the evidence that defendant

was aware that J had intellectual deficits that made her vul-

nerable to manipulation. The evidence supports a finding

that J’s intellectual deficits are obvious after a short inter-

action with her. Boothe testified that before defendant and J

started dating, defendant asked Boothe about J’s diagnosis

and that Boothe shared with him that J had been diagnosed

as “retarded.”

Boothe was protective of J, and when defendant

asked J for a date, Boothe said that she was concerned and

told J that she must bring defendant in the house before

their first date. Thus, on their first date, against defendant’s

wishes but on Boothe’s insistence, defendant came into the

house to visit when he came to pick up J. Boothe shared with

defendant J’s navigation issues and how easily she gets lost.

Defendant told Boothe that he was a Christian man and

volunteered at the church. He assured Boothe that he would

“take things slow” with J and would not touch her, unless

they were married.

“A. Seems like it would make them feel they truly love each other and

they’re truly happy and they’re truly comfortable.

“Q. Okay. What about the term coerce? Do you know that word?

“A. A—no, I’ve never heard that, the term course [sic] word before.

“Q. What about the word rape? Do you know that word?

“A. I’ve heard of that word. It seems like I remember when I was growing

up, I didn’t have a whole lot of learning process and what it really meant. It

seems like it took me a little while when I was growing up on what it meant.

“Q. Okay, but you used that word yourself with Detective Sandler, right?

Do you remember that?

“A. Yes.

“Q. Okay. Did you know what that word meant then?

“A. Yes.

“Q. Okay, so what does the word rape mean?

“A. It means when the victim says no, it means no and the person that’s

doing it to them should stop instead of continuing it.”

Cite as 321 Or App 704 (2022) 711

The evidence would support a finding that defen-

dant manipulated J and took advantage of her vulnerabil-

ity. Defendant lied to J about his age, telling her that he

was 30 years old when he was in fact 50. J testified that

defendant asked her to marry him but also told her not to sit

with him in church or to tell anyone that they were dating,

because “he didn’t want any of the pastors from the church

know[ing] anything about what was really going on, because

they would, he told me that if they knew then he, he would

actu—and then they would just kick him out.” Defendant

told Boothe that he did not want anyone to know that he and

J were dating, because he did not want anyone to think he

was taking advantage of J.

J testified that defendant was controlling. Defendant

told J that he liked to help homeless people and to pretend

that he was Jesus and that J was Mary. J testified that she

did not like that, because she said she is not Mary. J resisted

defendant’s suggestions that she wear high heels and a

dress and not cut her hair. J testified that she also resisted

defendant’s requests for money and request that she stop

coloring in adult coloring books. J also testified that she ini-

tially resisted defendant’s attempts to know what she was

texting to her cousin on her cell phone.

J participated in a forensic interview with Sandler.

Sandler made a video recording of her interview with J,

and the jury heard Sandler’s summary of the interview and

watched the video, in which J described sexual activities

initiated by defendant. J also testified at trial about sexual

activities that defendant initiated, and her testimony was

consistent with what she had told Sandler in the interview.

J testified that, on a date, defendant asked J to take off her

clothes, and he helped her to undress. She thought it was

strange, because no one had ever asked her to take off her

clothes, but she allowed defendant to undress her because

she trusted him. Defendant took photos of J when she was

naked, and J said she was unhappy when defendant took

pictures of her breasts and vagina, which she described as

her “personal areas.”

J testified that defendant watched pornography on

his cell phone. One video showed a woman giving oral sex to

712 State v. Wallace

a man in the shower. Defendant asked J to do the same to

him, and she did.5

J testified that defendant put his face on her vagina

and licked. J backed up, but defendant pulled her back down

by the legs and continued.6

5

The prosecutor inquired, using J’s terminology:

“Q. Did [defendant] ever put his, his dick in your mouth?

“A. Yes.

“Q. Can you tell me about that?

“A. He, I’m trying to remember about that one, that, that was, that was

when he was actually looking up stuff on his phone, like some type of a video

of this, some of it actually had this lady, and, in the shower, actually saw her

have in her mouth on someone else’s dick, and that was where he got an idea

of putting his dick in my mouth.

“Q. So [defendant] showed you a video of a woman or lady and in that

video the lady—

“A. She looked kind of young.

“Q. She looked kind of young?

“A. But I’m not sure how old that video is, and it was just something he

looked up.

“* * * * *

“Q. Okay. How did that make your body feel?

“A. Actually, it actually made me felt like I was going to just gag, either

gag or vomit, like that’s how—

“Q. Did you get sick to your stomach?

“A. I thought I would. I should have unless I just gagged and just felt

disgusted like this does not feel right and this does not feel normal.

“Q. When [defendant] put his dick in your mouth, what did it taste like?

“A. It had like a salt-type of taste, like it would, like after he was done,

maybe just being done urinating or something from going to the bathroom is

what it tasted like.”

6

J testified:

“Q. Did [defendant] ever put his face on your virginity area?

“A. Yeah, that’s where he was, seems like I remember he was trying to

like lick it with his tongue.

“Q. How did that make your body feel?

“A. It—it felt scary.

“Q. Did you try to back up a little bit, or did you try to—

“A. Yeah, I did. I did try to back up a little bit and then that was when

he, seems like that was when some of the forces would get started or continue

and that was when he would, because I remember he’d, he would grab me like

either by my ankles or by my thighs and just pull me back down and I would

try and hang on to at least to some bars or something like that from where his

bed part was, but seems like I remember it was wood, too, so it wasn’t much

to really hang onto.

Cite as 321 Or App 704 (2022) 713

Defendant had J massage his testicles.7

Defendant initiated intercourse with J. J testified

that, during that conduct, defendant pinned J down flat on

her face. J testified that she told defendant that she was

not comfortable with continuing, but defendant did not stop,

and J started screaming. J testified that defendant put his

hand over her mouth and told her that he did not want his

roommate or the neighbors or the police to hear. J testified

that she said “ow” and “no,” but that defendant just repeated

the words and continued. J testified that she thought that

defendant had put his penis in her “behind part.” She testi-

fied that she did not know about condoms or lubricant.8

“Q. Did you say anything to him when he put his mouth on your virginity

area?

“A. Seems like I remem—I don’t really remember for sure if I said any-

thing to him about that part, it’s just I remember I didn’t, I didn’t like it, and

it didn’t feel right. I did not felt (sic) right. It did not felt (sic) normal at all.”

7

J testified:

“Q. [J], did [defendant] ever have you touch or massage his balls?

“A. Yeah.

“Q. Can you tell me about that?

“A. He, that was when he was on top of me. Back then I was actually flat

on my back when that, when that part occurred, and seems like I remem-

bered was he would use the same thing that he used kind of a little bit was,

that’s kind of where those sort of like jelly-type of things, whatever it’s called,

would occur, and that’s where he would make me, he would have me do that

and he would have, he would actually put that stuff on my hands and have me

do that type of thing.

“Q. And when [defendant] had you touch or massage his balls, how did

that make you feel?

“A. It felt, it felt uncomfortable.

“Q. Did he, did he tell you why he wanted you to massage his balls?

“A. Well, in his defense on that part, he, to him, it felt good.

“Q. So because it felt good to him?

“A. Yeah, it was like a, yeah, yeah, it was like a massage.”

8

The prosecutor inquired, again using J’s terminology:

“Q. And did you ever see [defendant] put anything on his dick?

“A. Yeah, and I never could figure out what the, what it was called, but

it was kind of like just like thick types of clear type of thing and around that

time he would use that before he forced his dick into my virginity, because

that was his way to try and force, force it in there, because it’s bigger, and I

remember when I would come home or if I was still at his place and I had to

use the restroom, when I would urinate, I would actually urinate that stuff

out.”

714 State v. Wallace

In his first through fourth assignments, defendant

asserts that the trial court erred in denying his motion for

a judgment of acquittal on the offenses alleged in Counts

2 through 5, based on a lack of evidence of J’s inability to

consent to sexual activity due to her mental disability. As

relevant to the charged crimes, under ORS 163.315(1)(a)

(2015), amended by Oregon Laws 2021, chapter 82, section 2,

a person is “incapable of consenting to a sexual act” if the per-

son is “mentally defective.”9 ORS 163.305(3) (2015), amended

by Oregon Laws 2021, chapter 82, section 1, provided that a

person is “mentally defective” if the person “suffers from a

qualifying mental disorder that renders the person incapa-

ble of appraising the nature of the conduct of the person.”10

Defendant does not dispute that J suffers from a

mental disability—a qualifying “mental defect” under the

terms of the statute. But he contends that her mental defect

did not preclude her from being able to consent to sexual

activity. Defendant points out, for example, that J’s disabil-

ity did not prevent her from expressing her desires or resist-

ing some of defendant’s demands, such as those relating to

her dress, her hair, her money, or her coloring. J clearly had

the ability to refuse to do things that defendant asked her

to do. Defendant contends that the evidence fails to show

that she was unable to consent to sexual activity initiated

by defendant because her mental defect rendered her inca-

pable of appraising the nature of the sexual conduct.

In Reed, the court determined the common mean-

ings of the terms “incapable” and “appraise.” 339 Or at

244 (citing Webster’s Third New Int’l Dictionary 105, 1141

(unabridged ed 2002)). Based on the dictionary definitions of

those terms, the court stated:

9

As noted, 321 Or App at 706 n 1, the statutes defining the offenses were

amended in 2021 to omit the phrases “by reason of mental defects” and “by reason

of mentally defective” and to substitute “by reason of being mentally incapaci-

tated, physically helpless or incapable of appraising the nature of the victim’s

conduct.” ORS 163.315 was also amended by Oregon Laws 2021, chapter 82, sec-

tion 2, and now provides that a person is incapable of consenting to a sexual act

if the person is “incapable of appraising the nature of the person’s conduct.”

10

ORS 163.305 was amended by Oregon Laws 2021, chapter 82, section 1

to omit the definition of “mentally defective” and now provides that a person is

“mentally incapacitated” if the “person is rendered incapable of appraising or

controlling the conduct of the person at the time of the alleged offense.”

Cite as 321 Or App 704 (2022) 715

“ORS 163.305(3) refers to a mental defect that prevents

one from appraising the nature of one’s own conduct. The

‘appraisal’ must constitute an exercise of judgment and the

making of choices based on an understanding of the nature

of one’s own conduct. Further, in circumstances such as

those presented in this case, we view that standard in the

context of interactions with other persons, such as offers

and proposals from other persons to engage in certain

kinds of conduct.”

339 Or at 244 (emphasis added). The court held in Reed

that the trial court erred in denying the defendant’s MJOA

on the sexual crimes charged there based on the victim’s

inability to consent, explaining that the evidence presented

failed to link the victim’s mental condition to an inability to

consent to sexual contact:

“On this record, we conclude that the state’s evidence

did not support the trial court’s decision to deny defen-

dant’s motion for a judgment of acquittal. [The expert wit-

ness] never was asked directly whether the victim’s mental

condition rendered her incapable of consenting to sexual

contact. [The expert witness]’s testimony did not address

either directly or inferentially the element of ‘incapable of

consent’ due to ‘mental defect’ in the sex crimes at issue,

as we have construed that element in this opinion. Indeed,

at oral argument in this court, the state conceded that it

had offered no direct evidence at trial regarding how the

victim’s mental capacity had affected her ability to appraise

the nature of the sexual conduct that defendant had initi-

ated. As noted, [the expert witness] testified that the victim

was not socially independent in her daily affairs and had

difficulty maintaining a job. Although that testimony might

have had some bearing on the victim’s qualifications to

manage money or to participate in the work force, it failed

to describe, either directly or by permissible inference, her

ability to understand and to consent to sexual relations.”

Id. at 247. Under the standard announced in Reed, the evi-

dence in the record must link the victim’s inability to under-

stand and consent to sexual relations to the victim’s mental

disability.

In State v. Tilly, 269 Or App 665, 681, 346 P3d

567, rev den, 357 Or 640 (2015), we explained that the

holding in Reed requires more “than generalized proof of

716 State v. Wallace

mental disability.” Rather, the state must establish “the

complainant’s requisite, particularized inability to under-

stand or consent to sexual relations.”

Thus, our case law has explained that the ability to

consent consists of two related concepts: (1) understanding

the nature of sexual conduct and (2) exercising judgment

and making choices based on that understanding. Reed,

339 Or at 244. Here it was the state’s burden to prove that,

because of her mental disability, J lacked the “particular-

ized ability” to understand the nature of the conduct that

defendant initiated, i.e., to understand that it was sexual, or

to exercise judgment to make the choice to consent to it. Id.;

Tilly, 269 Or App at 681.

The state contends that the evidence of J’s vulner-

ability and lack of understanding of sexual relations,11 as

well as her passive acquiescence to defendant’s conduct that

she found unpleasant, met that burden. But as defendant

contends, J’s lack of knowledge about what constitutes sex-

ual activity does not necessarily equate with an inability to

consent. The court explained in Reed that a mental disabil-

ity does not necessarily preclude a person from being able to

consent to sexual activity:

“It is also necessary to point out that the statutory defi-

nition of mentally defective does not support the notion that

a person who has a mental disability is necessarily inca-

pable of consenting to sexual relations under any circum-

stances. Rather, a person who can understand that another

person has initiated some kind of sexual activity with that

person may be capable of appraising the nature of the con-

duct and, thus, may be capable of consenting to a sexual act

for purposes of the statutory provisions at issue here.”

339 Or at 245 (emphasis added). It is clear that J had a lim-

ited and simplistic understanding of what sexual activity

11

The state does not contend that J’s mental defect would prevent her from

ever being able to consent. In fact, the state conceded at oral argument the pos-

sibility that J could, with help, become sufficiently knowledgeable about sexual

activity to give consent. That concession would seem to be inconsistent with the

state’s burden to show that, because of her mental disability, J lacked the “partic-

ularized ability” to appraise the nature of sexual conduct or to exercise judgment

to consent to it. But because of our disposition, we do not need to decide here

whether, to convict a person based on an inability to consent, the state must

establish that the person’s mental disability will always prevent the person from

being able to consent.

Cite as 321 Or App 704 (2022) 717

was. Because of defendant’s manipulations and misrepresen-

tations, she may not even have understood that the activity

that defendant initiated with her was “sex” and not “fore-

play.”12 But although J might not have understood that

12

We include the following excerpts of Sandler’s forensic interview of J to

illustrate J’s simplistic understanding of sexual activity:

“MS. SANDLER: So what I’d like you to do is tell me all about what

happened with [defendant] that led this officer to believe that this was a sex

abuse case. Can you tell me everything you’d done with [defendant]?

“[J]: Well, he would have me—when he would take me to his house, that’s

where he would call foreplay.

“MS. SANDLER: Okay.

“[J]: Which I had never heard of before.

“MS. SANDLER: What is foreplay?

“[J.]: Well, I thought they just called it foreplay—how I pictured it would

just be, you know, people that truly love each other—

“MS. SANDLER: Um-hum.

“[J]: —and when they’re ready to like have, you know, just, you know,

(indiscernible) or just be close—

“MS. SANDLER: Um-hum.

“[J]: —together. That’s what I thought it would be, but the way [defen-

dant] did it, he would just like—one time he would just take me down in his

bedroom.

“MS. SANDLER: So tell me about the time you could be there in his

bedroom.

“[J]: It was the day before his birthday.

“[J]: Okay. And what happened?

“[J]: He like had me take off his—had me take off my clothes, and then—

“MS. SANDLER: Um-hum.

“[J]: —that is when he would end up taking pictures of me nude.

“MS. SANDLER: Okay.

“[J]: When I got out of the shower, he does the same thing through text,

just through text. He ended up taking pictures of me nude then, too.

“MS. SANDLER: Okay. So let’s go back to the day before his birthday.

You said that he took you down into his bedroom. So first, he had you take off

your clothes, and then what happened next?

“[J]: That is when he would like start with the pinning me down type of

thing, and then—

“MS. SANDLER: So what was that—

“[J]: —put his dick—his dick in me.

“MS. SANDLER: Okay. All right. So when you said he put his dick in

you, where did he put his dick? Where does his dick go?

“[J]: (Indiscernible). It was kind like around my—it was around my face,

which would be kind of like where the—like the (indiscernible) would be.

“MS. SANDLER: Okay.

718 State v. Wallace

defendant’s conduct toward her was “sex,” per se, i.e., she

lacked a precise understanding of the details or terminology

of “sex,” the evidence does not support the finding that J did

not understand that the activity initiated by defendant was

sexual in nature. J testified that defendant told her that put-

ting his penis in her mouth was “part of sex.” J told Sandler

that she did not know anything about sex but that she “really

wanted to know what it was like.” When Sandler asked J if

she was “okay” with her clothes coming off, J responded, “Yes

and no.” The record requires the finding that J understood

that defendant had initiated sexual activity with her.

Although the evidence supports a finding that, in

initiating sexual activity, defendant took advantage of J’s

curiosity, as well as her vulnerability and lack of under-

standing, here, as in Reed, there is no evidence that J’s men-

tal disability prevented her from understanding the sexual

nature of the conduct that defendant initiated. Nor would

the evidence support a finding that, because of her mental

disability, J lacked the ability to exercise judgment to con-

sent to sexual conduct.13 In the absence of that evidence, we

must conclude that the record does not support a finding

that, because of her mental disability, J lacked the ability

to consent. We conclude, therefore, that the trial court erred

in denying defendant’s motion for a judgment of acquittal on

Counts 2 through 5.14

“[J]: And after that (indiscernible). One time when I went to the bath-

room at home not too long ago, I actually did like (indiscernible). I remember

when I went to go to the bathroom and I got in the shower and I’d touch that

area and there would be times where it would kind of like slimy.

“MS. SANDLER: Okay.

“[J]: Which would be from where he put his dick at.

“MS. SANDLER: Okay.

“[J]: And he told me about—had said something about that being nor-

mal. It didn’t seem normal to me, having that—”

13

The state’s theory at trial was that J’s mental disability made her unable to

consent to sexual activity; thus, we are not presented with the question whether J

did not in fact consent to sexual activity when her reluctant acquiescence is con-

sidered in light of her mental disability and defendant’s manipulative behavior.

14

In view of our reversal of the guilty verdict on Count 2 and defendant’s

convictions on Counts 3 through 5, we need not address defendant’s sixth and

seventh assignments of error, in which he challenges, under Ramos v. Louisiana,

590 US ___, 140 S Ct 1390, 206 L Ed 2d 583 (2020), the trial court’s giving of a

nonunanimous jury instruction and his conviction of sexual abuse in the first

degree (Count 5) based on a nonunanimous verdict.

Cite as 321 Or App 704 (2022) 719

Counts 2 through 5 reversed; remanded for resen-

tencing; otherwise affirmed.

MOONEY, P. J., concurring in part, dissenting in

part.

I join the majority and concur in rejecting the argu-

ments raised by defendant in his pro se supplemental brief

and in affirming the judgment of conviction on Count 1, rape

in the first degree based on forcible compulsion. But because

I view the record pertaining to Counts 2, 3, 4, and 5 differ-

ently than the majority, and because I would affirm those

convictions as well, I must respectfully dissent in part.

The legal standard in reviewing the denial of a

motion for judgment of acquittal requires us to view the

facts and reasonable inferences in the light most favorable

to the state. State v. Cunningham, 320 Or 47, 63, 880 P2d

431 (1994), cert den, 514 US 1005 (1995). It is our job to

affirm the convictions when the evidence is legally sufficient

to support the jury’s verdict. Id.

The pertinent, undisputed evidence is this:

• J is an adult woman who suffers from a mental

disability—a qualifying “mental defect” under the

terms of former ORS 163.305(3) (2015).

• J is intellectually disabled with an IQ of 62, and she

has been diagnosed with mild retardation.

• J requires assistance with basic activities of daily

living—to the point that she requires a full-time

caregiver, every day of the year.

• J works at Wal-Mart where, after two years of

coaching, she waters plants and helps to organize

clothing.

• J has poor short-term memory and cannot success-

fully navigate her own neighborhood; she requires

a pre-arranged taxi to get to and from Wal-Mart.

• J has a vague understanding of what sex is and

where babies come from, and she has expressed

some interest in learning about sex.

720 State v. Wallace

• When defendant asked J to change her hairstyle and

her manner of dress, she resisted those requests.

• When defendant asked J to remove her clothing,

she did so reluctantly and only because she trusted

defendant, but his physical advances were scary,

uncomfortable, and made her gag; when J tried to

pull away from defendant, he stopped her and con-

tinued what he was doing.

A rational jury, drawing on its common knowledge

about intellectual capacity in humans and what that looks

like in terms of how a person functions in the world could

rationally conclude that J’s qualifying mental disorder ren-

dered her unable to consent to sexual contact with defen-

dant under the circumstances of this case. No one would

suggest that a third-grade child of average intelligence, who

functions scholastically at the same level as an adult with

an IQ of 62, would have the capacity to consent to sex. It

would not matter that the child knew something about sex

or even that the child was interested in learning about sex.

And it would not matter that the child had resisted haircuts

or refused to wear certain clothing items. We presume that

children do not have sufficiently-developed adaptive skills

or the judgment necessary to negotiate the complex dynam-

ics of a sexual relationship—no matter how smart the child

may be. Intelligence in the academic or scholastic sense is

only part of the picture.

Here, the jurors knew that J’s IQ was 62 and that

she had been diagnosed with mild mental retardation. In

fact, they knew that J’s mental disability was a “mental

defect” under the first-degree rape statute—a point defen-

dant did not dispute. To be sure, they also knew that J was

an adult—not a child in third grade. But while mental retar-

dation begins in childhood, it survives childhood and contin-

ues into adulthood. Given that the jurors had evidence of J’s

compromised intellectual capacity, mild mental retardation

diagnosis, as well as testimony bearing on J’s limited adap-

tive skills, they could logically conclude on this record, that

because of her mental disability, she was not able to consent

to sex with defendant.