State v. Woods

Under State ex rel Maney v. Hsu, 308 Or App 822, 827, 482 P3d 136, rev den, 368 Or 273 (2021), it must “plainly be the case” that subsequent Supreme Court decisions undercut the validity of prior decisions before the Court of Appeals will overrule its precedents.

Defendant was found guilty of 26 offenses after a jury trial. On appeal, Defendant argued that the trial court plainly erred by failing to instruct the jury that, in order to convict him of first-degree sexual assault and first-degree rape, “the jury had to find that defendant knew that the alleged victims were incapable of consent by reason of mental incapacitation or physical helplessness.” According to defendant, that omission was plain error under State v. Simonov, 358 Or 351, 368 P3d 11 (2016), and State v. Haltom, 366 Or 791, 472 P3d 246 (2020). In response, the state argued that defendant’s argument was foreclosed by State v. Phelps, 141 Or App 555, 558, 902 P2d 1098, rev den, 324 Or 306 (1996)—an opinion that the court has adhered to after Simonov was decided. As the court explained, “[d]ictum is not binding on the court, and we do not apply dictum that provides no useful guidance.” (internal citations and quotations omitted). Under State ex rel Maney v. Hsu, 308 Or App 822, 827, 482 P3d 136, rev den, 368 Or 273 (2021), it must “plainly be the case” that subsequent Supreme Court decisions undercut the validity of prior decisions before the Court of Appeals will overrule its precedents. Thus, the Court held that nothing in Simonov or Haltom displaced Phelps, especially “in the absence of any argument from defendant to that effect.” Counts 1, 2, 3, 4, 16, 27, 28, and 29 reversed and remanded; remanded for resentencing; otherwise affirmed.