State v. Le

129

Submitted December 20, 2022, affirmed July 19, petition for review denied

December 7, 2023 (371 Or 715)

STATE OF OREGON,

Plaintiff-Respondent,

v.

AN NGOC LE,

Defendant-Appellant.

Washington County Circuit Court

16CR78119; A175902

534 P3d 1097

Defendant appeals from a judgment convicting him of two counts of first-

degree sexual abuse, ORS 163.427, assigning error to the admission of evidence

of his prior uncharged acts under OEC 404(3) and OEC 403 and to the imposition

of 75-month concurrent prison sentences on each count. According to defendant,

the prior uncharged conduct, which was admitted under OEC 404(3) to show his

sexual predisposition towards the alleged victim, constituted inadmissible pro-

pensity evidence. Relying on that propensity argument, he further argues that

the court abused its discretion in concluding that the probative value of that evi-

dence outweighed the risks of unfair prejudice. Defendant finally argues that his

75-month prison term sentences are constitutionally disproportionate, in light of

State v. Rodriguez/Buck, 347 Or 46, 217 P3d 659 (2009). Held: The trial court did

not err in admitting evidence of defendant’s prior uncharged conduct under OEC

404(3), because evidence of a defendant’s “sexual predisposition” towards the

alleged “particular victim” is admissible as nonpropensity evidence under State

v. McKay, 309 Or 305, 787 P2d 479 (1990). Because that evidence was admissible

for a nonpropensity purpose, the trial court acted within the range of its legally

permissible choices when conducting the OEC 403 balancing test and thus did

not abuse its discretion. Moreover, although defendant had no criminal history,

the conduct underlying his conviction—massaging the victim’s legs, touching her

clothed breast, and attempting to put his hand down her shirt—was not mini-

mal and did not pass the Rodriguez/Buck proportionality test. Thus, the trial

court did not err in applying the ORS 137.700(2)(a)(Q) “mandatory minimum”

75-month prison sentence requirement.

Affirmed.

Theodore E. Sims, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate

Section, and Shawn Wiley, Deputy Public Defender, Office

of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman,

Solicitor General, and Patrick M. Ebbett, Assistant Attorney

General, filed the brief for respondent.

130 State v. Le

Before Ortega, Presiding Judge, and Powers, Judge, and

Hellman, Judge.

ORTEGA, P. J.

Affirmed.

Cite as 327 Or App 129 (2023) 131

ORTEGA, P. J.

Defendant appeals from a judgment convicting him

of two counts of first-degree sexual abuse, ORS 163.427, and

asserts three challenges to the underlying proceedings. In

his first assignment, he argues that the trial court errone-

ously admitted evidence of his prior uncharged acts under

OEC 404(3) and abused its discretion when later conduct-

ing the required OEC 403 balancing for unfair prejudice.

In his second and third assignments, defendant argues that

his 75-month prison sentences violate Article I, section 16,

of the Oregon Constitution and the Eighth Amendment to

the United States Constitution. We conclude that the trial

court’s admission of evidence regarding defendant’s prior

uncharged acts was not in error, that defendant’s sentences

do not violate the Oregon Constitution as interpreted in

State v. Rodriguez/Buck, 347 Or 46, 217 P3d 659 (2009), and

that he did not preserve his arguments under the Eighth

Amendment. Accordingly, we affirm.

We evaluate the facts concerning a challenge to “the

denial of a defendant’s motion to exclude evidence of other

acts in light of the record made before the trial court when

it issued the order.” State v. Brumbach, 273 Or App 552, 553,

359 P3d 490 (2015), rev den, 359 Or 525 (2016). We state the

relevant facts in accordance with that standard and include

additional facts and specific standards of review in our dis-

cussion of each assignment of error.

The state charged defendant in 2016 with two

counts of first-degree sexual abuse, ORS 163.427, based on

allegations that he had subjected a family friend’s 13-year-

old daughter, C, to sexual contact on two occasions, one by

touching C’s clothed chest and putting his hand on C’s leg to

massage her thigh and the other by touching C’s breast.1 A

jury convicted defendant of both counts and the court sen-

tenced him accordingly. We affirmed that judgment, but the

Supreme Court later reversed and remanded both convic-

tions for a new trial in light of Ramos v. Louisiana, 590 US

___, 140 S Ct 1390, 206 L Ed 2d 583 (2020).

1

ORS 163.427(1) provides that “[a] person commits the crime of sexual abuse

in the first degree when that person * * * [s]ubjects another person to sexual con-

tact and [t]he victim is less than 14 years of age[.]”

132 State v. Le

On remand, defendant moved in limine under OEC

403 to exclude evidence of two prior uncharged acts, which

the state had introduced under OEC 404(3) during defen-

dant’s first trial to support the state’s theory that defendant

had touched C for a sexual purpose on the charged occasions.2

One of those acts occurred at a dinner gathering of defen-

dant’s and C’s families; defendant allegedly pulled C’s dress

away from her chest and looked down to see whether any

food had gone down her dress. The other act concerned an

occasion when defendant allegedly made comments about C’s

body relating to places where she had gained and lost weight.

In support of his motion, defendant argued that,

under State v. Johns, 301 Or 535, 725 P2d 312 (1986), over-

ruled by State v. Skillicorn, 367 Or 464, 479 P3d 254 (2021),

evidence of his prior acts could not be admitted under OEC

404(3) to prove his sexual intent.3 Defendant further argued

that, if the evidence was admissible under OEC 404(3), it

should be excluded under OEC 403 as unfairly prejudicial.

The state contended that the evidence was admissible under

OEC 404(3) and State v. McKay, 309 Or 305, 787 P2d 479

(1990), “to prove defendant’s intent” or “[m]ore specifically”

to “demonstrate[ ] * * * defendant’s sexual predisposition

towards” C. See id. at 308 (holding that evidence that is

used “to demonstrate the sexual predisposition” of a defen-

dant towards a “particular victim” is admissible “to show

the sexual inclination of the defendant towards the victim,

not that [the defendant] had a character trait or propensity

to engage in sexual misconduct generally”). The state fur-

ther argued that OEC 403 would not bar the admissibility

of that evidence as its prejudicial effect would not substan-

tially outweigh its probative value.

At a hearing on the motion, both defendant and

the state reiterated the arguments in their pretrial memo-

randums. The state argued that the disputed evidence was

2

OEC 403 provides that “[a]lthough relevant, evidence may be excluded if its

probative value is substantially outweighed by the danger of unfair prejudice[.]”

OEC 404(3) provides that “[e]vidence of other * * * acts is not admissible to prove

the character of a person in order to show that the person acted in conformity

therewith” but “may, however, be admissible for other purposes, such as proof of

motive, opportunity, [or] intent[.]”

3

Defendant’s motion in limine, as well as his second trial, occurred before

the Supreme Court decided Skillicorn.

Cite as 327 Or App 129 (2023) 133

admissible under OEC 404(3) because it would provide valu-

able context demonstrating that defendant had an interest

in C, which was relevant to whether he touched her with a

sexual purpose on the charged occasions. The state reas-

serted that the evidence was “only prejudicial in that it

show[ed] that [defendant] ha[d] a sexual purpose, but it’s not

unfairly prejudicial.” Defendant continued to rely on Johns

and characterized the probative value of the evidence as

“innocuous,” which the state adopted on rebuttal to argue

that it carried no risk of unfair prejudice.

Agreeing with the state, the trial court denied

defendant’s motion:

“[C]onsidering the [s]tate’s burden in proof, I don’t see how

they could possibly prove their case without creating the

context that the predicate acts * * * happened. I’m not find-

ing they did happen. I haven’t heard any evidence on that

point yet. But the [s]tate’s entitled to do it.

“* * * [T]here’s minimal, if any, unfair prejudice to this.

“And, as the facts come out, [defense counsel], I’m sure

you’ll be pointing out any discrepancies or inconsistencies

in the facts. I mean, certainly able to split that off.

“So, I think that the Johns standards here are met. I’m

going to allow those statements to come in or those inci-

dents to come in.”

Defendant’s case proceeded to a bench trial. The

state introduced the recording of C’s interview at Child

Abuse Response and Evaluation Service (CARES), during

which C disclosed defendant’s prior conduct of pulling her

dress and looking down her body, and about which C also

testified. In addition to C, seven other witnesses testified for

the state, including C’s high school friend, C’s school coun-

selor, the CARES interviewer, and C’s mother, who testified

to the following:

“Right when we got into the car, [C] related the story to

me, saying that [defendant] had touched her in the thigh

and chest. She was really scared and was crying.

“* * * * *

“I told her, ‘Let’s not try to remember that. Let’s try to

forget about it. Let’s try to forgive him.’ ”

134 State v. Le

C also testified about defendant’s charged conduct

and stated that:

“[Defendant] walked into the room, and * * * started

talking to me * * *.

“[He] talked about how he owned a salon, so I should

come down and, like, he could massage me[,] while he was

kind of squeezing my leg up and down. And I just was really

uncomfortable in that moment and kind of in shock.

“* * * * *

“[He touched my breast with] [h]is hand * * *.

“He grabbed it [over my clothes].”

Regarding defendant’s second charged conduct, C

testified:

“We were walking all together, and then [defendant’s

son] was rushing ahead, so I was walking side-by-side with

[defendant], and he put his arm around my shoulder. * * *

[H]is hand was kind of dropping down, and it fell * * * onto

the top of my breast, and he was kind of, like, waving it side

to side, and it felt like he was trying to get underneath my

shirt.

“* * * * *

“I just felt fingers brushing the top of my breast.”

Defendant, who did not testify, denied ever touching

C for a sexual purpose. The court ultimately found defen-

dant guilty of both counts of first-degree sexual abuse, find-

ing C’s testimony to be “very credible.” The court explained:

“[C] had no motive to lie. She had lots of family and

cultural pressure to make this whole thing just disap-

pear under the rug, but she managed to thread the needle

between doing what was right and remaining respectful,

as best she could, to her elders.

“* * * * *

“The context within which these activities took place

leave no doubt that the purpose of his physical touching

does qualify as sexual contact under the statute.”

The court then sentenced defendant to concurrent

75 months’ incarceration on each count, as required by ORS

137.700.

Cite as 327 Or App 129 (2023) 135

We begin with defendant’s first assignment of error,

which challenges the admission of evidence of his prior con-

duct under OEC 404(3) and OEC 403. We review for legal

error a trial court’s admission of uncharged misconduct evi-

dence under OEC 404(3). State v. Wright, 283 Or App 160,

168, 387 P3d 405 (2016). “[W]e review the trial court’s deter-

mination under OEC 403 for an abuse of discretion.” State v.

Naudain, 300 Or App 222, 227, 452 P3d 970 (2019), aff’d, 368

Or 140, 487 P3d 32 (2021).

Defendant first argues that the court improperly

concluded that the evidence was relevant to show his sexual

predisposition towards C under OEC 404(3). He contends

that evidence of a defendant’s sexual predisposition for a

particular victim “is nothing more than propensity evidence”

and should be excluded. He acknowledges that the Supreme

Court held in McKay that evidence used “to demonstrate

the sexual predisposition” of a defendant towards a “partic-

ular victim” is admissible “to show the sexual inclination of

[the] defendant towards the victim,” 309 Or at 308, and that

we upheld that theory of admissibility in State v. Gonzalez-

Sanchez, 283 Or App 800, 809, 391 P3d 811, rev den, 361 Or

645 (2017), but maintains that neither we nor the Supreme

Court has explained how using evidence of prior acts to show

sexual predisposition does not constitute propensity evi-

dence. In defendant’s view, Gonzalez-Sanchez was wrongly

decided and has been undermined by Skillicorn.4 Because

Skillicorn is not directly on point, as it involved the doctrine

of chances and this case does not, and McKay, which is on

4

In Skillicorn, the Supreme Court held that evidence is not admissible under

OEC 404(3) to prove motive, intent, lack of accident, and others under the doctrine

of chances if it employs propensity reasoning. 367 Or at 493-94. In that case, the

court addressed the admission of evidence of a defendant’s “uncharged miscon-

duct” for the purpose of showing the defendant’s character generally, rather than

for the purpose of showing a defendant’s sexual predisposition toward a specific

victim, as in McKay.

“The doctrine of chances is a theory of relevance based on the objective

improbability of the recurrence of uncommon events. The idea underlying the

doctrine is that, at some point, it becomes unlikely that each event in a series

of similar events can have the same uncommon cause; therefore, if the num-

ber of events in a series claimed to have the same uncommon cause exceeds

the number that can reasonably be expected to have that cause, a factfinder

can infer that not all of the events actually have that cause.”

Skillicorn, 367 Or at 484.

136 State v. Le

point, has not been overruled, McKay controls our decision.

We thus reject defendant’s argument, having rejected a sim-

ilar argument in Gonzalez-Sanchez. See 283 Or App at 808

n 3.

Addressing the specific circumstances of defen-

dant’s case, we conclude that the evidence of defendant’s

other acts was admissible under OEC 404(3). As the record

developed before the court’s ruling on defendant’s motion,

the state offered evidence that defendant looked down C’s

dress and made comments about her body for the purpose

of proving his “sexual predisposition towards” C, thereby

offering context showing that the charged acts had a sex-

ual purpose. The court admitted the evidence in accordance

with the state’s theory. Because the McKay theory of admis-

sibility as to sexual predisposition toward a specific victim

upheld in Gonzalez-Sanchez is still valid, the trial court did

not err in ruling that the evidence was admissible under

OEC 404(3).

Defendant further contends that “the court abused

its discretion when it concluded [under OEC 403] that the

propensity value of the disputed evidence outweighed the

risks of unfair prejudice” against him, and that the court’s

error was not harmless. According to defendant, the court

admitted the disputed evidence based on an erroneous “pro-

pensity” theory, and so its conclusion that the evidence’s pro-

bative value exceeded the danger of unfair prejudice was a

misapprehension of the OEC 404 legal principle. We are not

persuaded.

“An abuse of discretion occurs when a court exer-

cises its discretion to an end not justified by, and clearly

against, evidence and reason.” State v. Sewell, 257 Or App

462, 468, 307 P3d 464, rev den, 354 Or 389 (2013) (inter-

nal quotation marks omitted). “In evaluating a trial court’s

discretionary ruling under OEC 403, our role is to assess

whether the court’s decision falls within the range of legally

permissible choices.” State v. Gibson, 299 Or App 582, 589,

451 P3d 259 (2019), rev den, 366 Or 691 (2020). A court’s

decision fails to “fall within the range of legally correct

choices and does not produce a permissible, legally correct

outcome,” when the “court’s exercise of discretion proceeds

Cite as 327 Or App 129 (2023) 137

from a mistaken legal premise.” Nationstar Mortgage, LLC

v. Hinkle, 321 Or App 300, 311-12, 516 P3d 718 (2022).

Here, defendant’s only challenge to the court’s

application of OEC 403 is founded on the premise that the

disputed evidence was improperly admitted for a propen-

sity purpose. However, as explained above, under McKay,

its admission was for a nonpropensity purpose which was

within the range of legally permissible choices and thus was

not an abuse of discretion. Accordingly, the court did not err

in admitting the evidence.

We turn to defendant’s second and third combined

assignments of error, challenging his concurrent 75-month

prison term sentences as constitutionally disproportionate.

We review such claims for legal error and, “[i]n conducting

that review, we are bound by any findings of historical fact

that the trial court may have made, if they are supported

by evidence in the record.” State v. Hawthorne, 316 Or App

487, 502, 504 P3d 1185 (2021), rev den, 369 Or 856 (2022).

“In the absence of express findings, we * * * presume that

the trial court resolved factual disputes consistently with its

ultimate decision.” State v. Ryan, 361 Or 602, 624, 396 P3d

867 (2017).

Defendant’s first-degree sexual abuse convictions

were subject to a mandatory minimum 75-month prison

sentence under ORS 137.700(2)(a)(Q) (Ballot Measure 11).

Defendant argued in the trial court that ORS 137.700

required sentence, as applied to his case, violate[d] Article I,

section 16, in light of Rodriguez/Buck, 347 Or at 50 (hold-

ing that a 75-month sentence for first-degree sexual abuse

offense was unconstitutionally disproportionate under the

specific circumstances at issue). He maintained that a simi-

lar result should follow here because, as in that case, (a) his

touching of C’s “clothed breast” and later “brushing” of the

top of her breast “with the tips of his fingers” was brief;

(b) 75 months in prison for his conduct is disproportion-

ate when compared to cases of sexual penetration or sod-

omy which carry similar sentences; and (c) defendant ha[d]

no criminal history. See Rodriguez/Buck, 347 Or at 67-78

(assessing similar factors and reaching similar conclusions).

According to defendant, his sentence “would shock the moral

138 State v. Le

sense of a reasonable person.” He argued that he should be

sentenced at his natural grid block of 8-I for Count 1, which

he stated would carry a presumptive sentence of 16 to 18

months, and 8-D for Count 2, which would carry a presump-

tive sentence of 27 to 28 months.

In response, the state compared the facts of defen-

dant’s case to the facts in Rodriguez and Buck, arguing that

a Measure 11 sentence for defendant was appropriate. The

state argued that defendant’s case involved a “more serious

level of culpability” than in Rodriguez/Buck, considering

that here defendant “was not in a consensual relationship

with” C as in Rodriguez, “nor was the contact incidental” as

in Buck; the state pointed out that defendant was instead a

“trusted” family friend whose conduct consisted of “putting

his hand down [C’s] shirt and touching her breast” on “two

separate occasions,” after making her uncomfortable on prior

occasions. According to the state, a mandatory minimum

75-month prison sentence would not “shock the conscience”

to the level of being unconstitutionally cruel and unusual.

The trial court agreed with the state and decided to

apply the 75-month prison term as required by ORS 137.700.

The court explained:

“The legislature has established a minimum sentence

in this case of 75 months. [Defendant] makes a good argu-

ment that that is a harsh sentence under the circumstances

of this case. It is, however, not so harsh as to shock the con-

science of the [c]ourt.”

On appeal, defendant maintains his argument

that his 75-month prison sentences would “shock the moral

sense” of reasonable people and are thus unconstitution-

ally disproportionate under Article I, section 16. See Or

Const, Art I, § 16 (“Cruel and unusual punishments shall

not be inflicted, but all penalties shall be proportioned to

the offense.”); see also Rodriguez/Buck, 347 Or at 57 (a pun-

ishment fails Article I, section 16, proportionality require-

ment if that punishment “shock[s] the moral sense of all rea-

sonable” people (emphasis in original)).5 The state likewise

reasserts the arguments it offered below.

5

Defendant also argues for the first time in his brief on appeal that his

75-month prison sentences violate the Eighth Amendment to the United States

Cite as 327 Or App 129 (2023) 139

When applying ORS 137.700(2)(a)(Q), a trial court

is permitted to depart from the “mandatory minimum”

75-month prison sentence requirement if it finds that the

respective sentence would be unconstitutionally dispro-

portionate; that is, when the court finds that a sentence

would “shock the moral sense” of reasonable people. State

v. Wheeler, 343 Or 652, 668, 175 P3d 438 (2007). Rodriguez/

Buck established three factors to be considered in making

that determination: “(1) a comparison of the severity of the

penalty and the gravity of the crime; (2) a comparison of the

penalties imposed for other, related crimes; and (3) the crim-

inal history of the defendant.” 347 Or at 58.

In assessing the first factor in Rodriguez/Buck—

comparing the penalty to the gravity of the offense—the

court considered “the limited extent” of the “physical touch-

ing” in each case. Id. at 70. In Rodriguez, the defendant

caused the back of a boy’s head “to be in contact with her

clothed breasts for about a minute,” in a room of 30 to 50

other people; in Buck, the defendant “let[ ] the back of his

hand remain when the girl leaned her clothed buttocks

against his hand several times and later wip[ed] dirt off the

back of her shorts with two swipes of his hand.” Id. The court

noted that, in Rodriguez, there was “no evidence” that any

touching “involved fondling, stroking, rubbing, or palpating”

and that, in Buck, the contact “did not involve fondling and

was ‘minimal.’ ” Id. at 70. In both cases, the “touchings were

brief, if not momentary[,]” the “ ‘intimate’ body parts that

were touched were clothed,” and there was “no skin-to-skin

contact” or other more invasive contact. Id. Determining

that “all reasonable people” would agree that the conduct in

which the defendants engaged therein was “far less severe,

wrongful, immoral, or harmful to a victim than at least one

other form of first-degree sexual abuse,” the court concluded

that the first factor indicated that the respective 75-month

Constitution. We do not address this issue because it was not preserved. See

ORAP 5.45 (“No matter claimed as error will be considered on appeal unless the

claim of error was preserved in the lower court[.]”); see also State v. Link, 367 Or

625, 639, 482 P3d 28 (2021) (Although a party need not “develop separate and

distinct arguments under both constitutions in the trial court to preserve both

issues for review on appeal” when “parallel constitutional provisions are at issue,”

the party “must frame its argument in a way that gives notice to the trial court

and opponents that it is advancing its claim under both constitutional sources.”).

140 State v. Le

prison sentences would be disproportionate to the gravity of

the offenses. Id. at 71, 74 (emphasis in original).

Assessing the second factor—a comparison of the

penalty to the penalties for related offenses—the court

observed that related offenses, including second-degree sod-

omy (ORS 163.395) and second-degree rape (ORS 163.365),

required 75-month prison sentences. It observed that,

despite the fact that the first-degree sexual abuse offenses

of Rodriguez and Buck were predicated on a “momentary”

contact, the imposed sentences would “result[ ] in the same

sentence” as if the defendants had sodomized or engaged in

sexual intercourse with the children. Id. at 75. The court

also compared the penalty at issue with the 75-month

prison sentence for second-degree sexual abuse (ORS

163.425), observing that its “physical and sexual content,

invasion of the body of the victim, and likely psychological

impact, seem[ed] far removed from the touchings at issue”

in Rodriguez/Buck. Id. at 76. Concluding that most people

would consider the conduct in these related offenses “far

more serious than the conduct of Rodriguez and Buck,” the

court saw this as “another indication that [75-month prison]

sentences in these cases would be disproportionate to the

offense.” Id.

Finally, despite observing that “Measure 11’s man-

datory 75-month sentence for first-degree sexual abuse

applies even if the defendant has had no prior criminal [his-

tory],” the court concluded that “the single occurrence of the

wrongful conduct,” in light of the defendants’ lack of crimi-

nal history, “support[ed] the conclusion that [the defendants’]

75-month sentence[s]” did violate the constitutional propor-

tionality requirement. Id. at 78 (noting that the defendants

“not only had no prior convictions or charges of any kind,”

but “the brief touching occurred on a single occasion[,]” in

contrast to “more common first-degree sexual abuse cases”

where “the contact is * * * more physically invasive and * * *

has occurred multiple times, rather than only once”). The

court then held that all factors together indicated that the

defendants’ sentences were “unconstitutionally dispropor-

tionate to the offense” under Article I, section 16. Id. at 71,

78.

Cite as 327 Or App 129 (2023) 141

By contrast, in Camacho-Garcia, we concluded

under Rodriguez/Buck that a 75-month sentence for first-

degree sexual abuse was not disproportionate. 268 Or App

75, 341 P3d 888 (2014), rev den, 357 Or 164 (2015). The

defendant in Camacho-Garcia, who was a “live-in paren-

tal figure” to his 12- or 13-year-old stepdaughter, “touched

[her] breasts on two occasions, once over and once under her

clothes.” Id. at 76, 82. Because the touching was “more inva-

sive than in Rodriguez/Buck,” and “more likely to be psycho-

logically damaging [as] it was repeated,” and because of the

defendant’s role in the parties’ relationship, we found that

the defendant’s sentence was not disproportionate when

compared to other crimes. Id. at 83. Regardless of other fac-

tors, we concluded that the defendant’s “sentence would not

shock the moral sense of reasonable people and [wa]s not

disproportionate under Article I, section 16.” Id. at 84.

Here, we conclude that, like Camacho-Garcia and

unlike Rodriguez/Buck, defendant’s “sentence would not

shock the moral sense of [all] reasonable people,” though

we acknowledge that in an age in which long sentences like

those imposed under Measure 11 are coming under more

scrutiny, the sentence would shock the moral sense of some.

Nevertheless, unlike the conduct in Rodriguez/Buck, defen-

dant’s conduct here—massaging C’s legs and touching her

clothed breast on one occasion, and then attempting to put

his hand down her shirt by “waving it side to side” such that

he brushed the top of her breast with his fingers on another

occasion—was more like a “rubbing” or “palpating” that was

not present in Rodriguez/Buck and is not minimal. Like in

Camacho-Garcia—which involved over- and under-clothes

contact of the defendant’s hand with the victim’s breast—

defendant’s repeated conduct here was “more invasive than

in Rodriguez/Buck” and “more likely to be psychologically

damaging,” especially in the context of his relationship with

C. As such—and considering C’s testimony that defendant’s

conduct made her “really uncomfortable” and “shock[ed]”—

not “all reasonable people” would agree that defendant’s con-

duct was less “wrongful, immoral, or harmful” to C to the

level of being disproportionate to at least one other form of

first-degree sexual abuse. Given all of these considerations,

we conclude that defendant’s lack of criminal history has

142 State v. Le

little weight in balancing the Rodriguez/Buck factors in this

case.

Accordingly, we agree with the trial court that

defendant’s sentences did not violate Article I, section 16,

and see no error in the court’s refusal to depart from the

ORS 137.700 minimum-sentence requirement.

Affirmed.