State v. Belen

Under ORS 163.405, to convict a defendant of first-degree sodomy a jury must find that the defendant had a culpable mental state when the defendant subjected the victim to forcible compulsion; failure to instruct the jury that it must find the defendant had a culpable mental state is plain error. However, when there is no evidentiary basis from which the jury could find that the defendant, in engaging in the charged conduct, subjected the victim to forcible compulsion but did not do so knowingly, the error is harmless.

Defendant Belen appealed his conviction of first-degree sodomy (ORS 163.405). On appeal, Defendant argued that the trial court erred in failing to instruct the jury that in order to convict defendant of first-degree sodomy, it must have found Defendant had a culpable mental state when he subjected the victim to forcible compulsion. The Court agreed that under the standard announced in State v. Nelson, 241 Or App 681 (2011), the trial court committed plain error by failing to instruct the jury on Defendant’s culpable mental state. However, the court found the error harmless, because when there is no evidentiary basis from which the jury could find that a defendant, in engaging in the charged conduct, subjected the victim to forcible compulsion but did not do so knowingly, the error is harmless. Affirmed.