State v. Sullivan

Alternative evidence of a single factual occurrence may be offered to prove an element of a crime.

Defendant appealed his convictions for sodomy in the first degree, arguing that the jury should have been instructed about a requirement to agree on a single theory finding forcible compulsion, an element of the crime. In the summer of 2007, Defendant physically forced the victim, a 13 year-old girl, to perform fellatio on him, threatening to kill her if she refused. A few days later, he anally penetrated the victim, and although during the second encounter he did not threaten the victim, she testified that she was still scared from the first encounter. At trial, the State offered two different theories on forcible compulsion: physical force or threat. The Court of Appeals noted that the definition of forcible compulsion under ORS 163.305(2) includes either physical force or a threat, and held that the prosecution was entitled to present evidence of either to prove the element of forcible compulsion. Thus, the trial court did not err in denying the jury instruction. Affirmed.