State v. Waldbillig

It is plain error for a court to fail to instruct a jury on the culpable mental state of the forcible compulsion component of first-degree sodomy and first-degree sexual abuse.

Defendant appealed conviction for two counts each of first-degree sodomy and first-degree sexual abuse. He argued that the trial court erred by failing to instruct the jury as to the culpable mental states to forcible compulsion for each of the respective crimes. The forcible compulsion element of both first-degree sodomy and first-degree sexual abuse require establishment of a culpable mental state. State v. Nelson, 241 Or. App. 681, 688, 251 P.3d 240 (2011), rev dismissed as improvidently allowed, 354 Or. 62 (2013). Failure to provide a jury instruction regarding such a culpable mental state is “plain error.” State v. Gray, 261 Or. App. 121, 130, 322 P.3d 1094 (2014). The Court of Appeals held that the trial court plainly erred by not giving such a jury instruction. However, the Court held that Defendant failed to preserve both his arguments for appeal, because the defense did not alert the trial court that the jury instructions did not instruct the jury as to the culpable mental states to forcible compulsion for either crime. The Court moreover found it did not have discretion to reverse the judgment because the error was harmless. Judgment affirmed.