State v. Hoover

In the absence of a statutory definition for “penetration” in the crime of sexual penetration, the act merely requires proof that the victim's vagina, rather than external genitalia, was penetrated, however slightly.

Defendant appealed his conviction for one count of first-degree sexual penetration, arguing that the trial court erred by denied his motion for judgment of acquittal because the evidence failed to show that penetration of the vagina occurred. Defendant asserted that in the absence of a statutory definition for penetration, the court may have based its findings on a comment made during the prosecutor’s closing that was drawn from the definition of “sexual intercourse” in ORS 163.305(7). The prosecutor remarked that “any penetration, however slight” suffices for the definition of sexual intercourse. Defendant attempted to distinguish the evidence as less than penetration and that penetration truly requires entering the vaginal canal. The Court found that even “slight” penetration was sufficient to constitute the offense. The Court also rejected Defendant’s challenge to his 300 month sentence for this and associated sexual abuse convictions as not unconstitutionally cruel and unusual punishment. Affirmed.