State v. Raygosa

Under State v. Kammeyer, 226 Or App 210, an error is invited when a party is “actively instrumental in bringing about an alleged error.”

Defendant appealed his conviction for six counts of first-degree sexual abuse, two counts of first-degree unlawful sexual penetration, and four counts of first-degree sodomy. Defendant advanced seven assignments of error, of which the Court addressed two, assigning error to the trial court’s allowance of lesser-included offenses. On appeal, Defendant argued it was plain error for the trial court to allow the state to proceed on first-degree sexual abuse charges in place of first-degree rape charges because first-degree sexual abuse is not a lesser-included offense of first-degree rape. In response, the state agreed that the trial court erred but argued that Defendant agreed at trial that first-degree sexual abuse was a lesser included offense of first-degree rape and therefore invited the error. Under State v. Kammeyer, 226 Or App 210, an error is invited when a party is “actively instrumental in bringing about an alleged error.” The Court found that Defendant’s statement at trial that the prosecutor “could [correctly] argue that [Defendant’s] conduct constitutes the crime of sexual abuse in the first degree” did not “address whether first-degree sexual abuse is a lesser-included offense of first-degree rape,” but instead acknowledged that particular conduct could constitute first-degree sexual abuse in arguing against allowing the state to pursue any lesser included offense after the court granted a motion for judgment of acquittal. Because Defendant did not agree that first-degree sexual abuse is a lesser included offense of first-degree rape and did not “invite the trial court to instruct the jury on that offense,” Defendant did not bring about the error. Convictions on Counts 11 and 12 reversed and remanded; remanded for resentencing; otherwise affirmed.