State v. Lugo

A person is physically helpless when that person “is unconscious or for any other reason is physically unable to communicate unwillingness to an act.” ORS 163.305(4).

Defendant appealed his conviction of first-degree sexual abuse and third-degree sexual abuse. Defendant assigned error to 1) the trial court’s denial of his motion for judgment of acquittal on count 1, and 2) the court’s failure to merge the verdicts for count 1 and 2. The State conceded to the second assignment of error and the Court used its discretion to correct the error. For assignment of error 1, Defendant argued that the MJOA should have been granted because the evidence was legally insufficient to show that the victim was “physically helpless” as that term is used in ORS 163.427. A person is physically helpless when that person “is unconscious or for any other reason is physically unable to communicate unwillingness to an act.” ORS 163.305(4). The Court reasoned that the evidence was sufficient for a factfinder to find beyond a reasonable doubt that the victim was physically helpless because she was not fully mentally present when the sexual conduct occurred, because it was 3am, she had just worked an 11-hour shift, and she was being woken up by the conduct. The Court found a victim who has been asleep at the time of the assault is physically helpless. Convictions for first-degree sexual abuse and third-degree sexual abuse reversed and remanded for entry of a single conviction for first-degree sexual abuse; remanded for resentencing; otherwise affirmed.