State v. Rideout ( 2020 )

504
Argued and submitted December 19, 2018; on appeal, affirmed; on cross-appeal,
reversed and remanded for resentencing April 15, 2020
STATE OF OREGON,
Plaintiff-Respondent,
Cross-Appellant,
v.
JOHN JOSEPH RIDEOUT,
Defendant-Appellant,
Cross-Respondent.
Marion County Circuit Court
16CR46282;
A164575 (Control), A164556
465 P3d 255
Defendant appeals a judgment of conviction for one count each of first-degree
sodomy, ORS 163.405, and first-degree rape, ORS 163.375, against separate vic-
tims, raising multiple assignments of error. The state cross-appeals, arguing that
the trial court erred when it concluded that the 25-year mandatory minimum
sentence under ORS 137.690 for defendant’s first-degree sodomy and first-degree
rape convictions was unconstitutional to impose on defendant under Article I,
section 16, of the Oregon Constitution. Held: The Court of Appeals rejected all of
defendant’s assignments of error without discussion. With regard to the state’s
cross-appeal, the court concluded that, given the severity of defendant’s criminal
conduct, together with his history of sexually assaulting vulnerable victims, this
was not “one of the rare cases in which Article I, section 16, precludes imposition
of the legislatively mandated sentence” of 25 years. State v. Horseman, 294 Or
App 398, 414, 432 P3d 258 (2018), rev den, 364 Or 723 (2019).
On appeal, affirmed; on cross-appeal, reversed and remanded for resentencing.
Thomas M. Hart, Judge.
Neil F. Byl, Deputy Public Defender, argued the cause for
appellant-cross-respondent. Also on the opening and answer-
ing brief was Ernest G. Lannet, Chief Defender, Criminal
Appellate Section, Office of Public Defense Services. John
Joseph Rideout filed the supplemental brief pro se.
Jamie K. Contreras, Assistant Attorney General, argued
the cause for respondent-cross-appellant. Also on the brief
were Ellen F. Rosenblum, Attorney General, and Benjamin
Gutman, Solicitor General.
Cite as 303 Or App 504 (2020) 505
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Shorr, Judge.
TOOKEY, J.
On appeal, affirmed; on cross-appeal, reversed and
remanded for resentencing.
506 State v. Rideout
TOOKEY, J.
Defendant appeals a judgment of conviction for one
count each of first-degree sodomy, ORS 163.405, and first-
degree rape, ORS 163.375, against separate victims. We
reject all of defendant’s assignments of error without dis-
cussion, including those raised in his pro se and supplemen-
tal briefs. The state cross-appeals, arguing that the trial
court erred when it concluded that the 25-year mandatory
minimum sentence under ORS 137.690 for defendant’s first-
degree sodomy and first-degree rape convictions was uncon-
stitutional to impose on defendant under Article I, section 16,
of the Oregon Constitution.1 Given the severity of defen-
dant’s criminal conduct, together with his history of sexu-
ally assaulting vulnerable victims, we conclude that this is
not “one of the rare cases in which Article I, section 16, pre-
cludes imposition of the legislatively mandated sentence.”
State v. Horseman, 294 Or App 398, 414, 432 P3d 258 (2018),
rev den, 364 Or 723 (2019). Accordingly, we reverse and
remand for resentencing.
I. BACKGROUND
“Because the constitutionality of a sentence depends
on, among other things, case-specific factors ‘such as char-
acteristics of the defendant and the victim, the harm to the
victim, and the relationship between the defendant and
the victim,’ ” we begin by summarizing the circumstances
underlying defendant’s sodomy and rape convictions, “as
well as the facts about defendant and his victim[s] that were
brought out at sentencing.” Horseman, 294 Or App at 401(quoting State v. Rodriguez/Buck, 347 Or 46, 62, 217 P3d
659 (2009)). We describe the facts underlying defendant’s
convictions in the light most favorable to the state. State v.
Smith, 277 Or App 709, 710, 372 P3d 549, rev den, 360 Or
423 (2016).
A. Crimes Against S
When defendant raped S in 2013, S was a 52-year-
old widow who supported herself with disability income
because she had an injured back and degenerative arthritis.
1
Article I, section 16, provides, in part, that “[c]ruel and unusual punish-
ments shall not be inflicted, but all penalties shall be proportioned to the offense.”
Cite as 303 Or App 504 (2020) 507
After her husband passed away in 2007, S became
very involved in her church. In 2012, S met defendant at
her church, and she remembers talking to him when they
were both working in the church’s vegetable garden. Other
than that, they “[h]ardly ever” spoke or spent time together,
except “[m]aybe [to] sa[y] hello.” In June of 2013, S decided
to ask defendant if he would like to do some work around
her house and, after finishing up some work in the church
garden, defendant followed S to her home to take a look at
the projects that S needed done.
S showed defendant a piece of furniture that needed
to be repaired and some other outside work that she needed
done. Defendant agreed to help S with those projects, and
then defendant sat down in the kitchen with S, S’s room-
mate, Nichole, and Nichole’s boyfriend, Drew. Because it
was getting late, and because S thought defendant had been
drinking and was impaired, S told defendant that he could
sleep on her couch. Drew went home, and Nichole went to
bed. S took defendant a blanket and a pillow and said, “We
are not having sex. You are just here to sober up until you
leave in the morning.” S felt the need to make that clear
to defendant because of “the way he was talking about the
woman that he said he was seeing,” and because “he was
just somebody [that S] was just going to help out through
[her] church.” S left defendant on the couch in her living
room and went to her bedroom to fall asleep. To help her
sleep, S took “a combination of a lot of medications” that help
to combat her depression, anxiety, and PTSD.
The next thing that S remembered was defendant
standing over the top of her and then getting into her bed.
Defendant pinned S’s arms down to the bed, got behind
her, and penetrated her vagina with his penis. Defendant
“smelled really bad,” and “[i]t was so disgusting” that S
“wanted to throw up.” S kept telling defendant to stop, but
she could not move and, when she “opened [her] mouth to
scream * * * [she] couldn’t get anything to come out.” S “went
somewhere else” mentally to protect herself, which was the
same thing that S did as a child when her stepfather would
sexually molest her, because her stepfather had told her
that, “if [S] went to the police, [S] would be the one arrested,
and then [S] would be responsible for [her family] not having
508 State v. Rideout
a home to live in because [S] would be the person who ruined
it for everybody.” Defendant raped S “all night” long and,
after several hours, defendant “made himself ejaculate.”
Defendant left S’s home early the next morning.
After defendant was gone, S, visibly shaken, told
Nichole what had happened. Nichole asked S if she wanted
to call the police, but S told Nichole that “[s]he just wanted to
let it go.” S also told her pastor and two friends from church
what had happened. S did not want to call the police, mostly
due to the fears that S’s stepfather had instilled in S as a
child about reporting sexual abuse. Instead, the pastor and
some of the elders from the church confronted defendant the
following day about the rape, and defendant was expelled
from the church community. Defendant made no further
efforts to return to the church to see S.
In the days following the rape, however, defendant
did try to call S. S and Nichole were screening the calls and
did not answer, so defendant left voice mails. After several
calls, Nichole finally answered the phone and, when defen-
dant asked to speak with S, Nichole told defendant “that [S]
didn’t want to talk to him and that he wasn’t supposed to
come back over. He wasn’t welcome. Not to call.” Defendant
stopped calling, and S did not hear from defendant for sev-
eral more years.
After the rape, S’s mental health declined. Three
weeks after the rape, S saw a physician assistant at a local
clinic and S reported that she could not “sleep or focus” or
“get anything done.” Additionally, because S did not feel safe
at home alone, a friend stayed with S for “a few months.”
Unfortunately, S’s depression and anxiety worsened to the
point of S becoming suicidal, and S was hospitalized for
eight days as a result. Eventually, S was able to better her
mental health with counseling and medication and, after
she was able to move out of the house where the rape had
occurred, S “was doing great.”
Nearly three years after defendant raped S, how-
ever, S’s sense of security in her new home was shattered,
and her anxiety worsened, when she received a call from
defendant in May of 2016. S described in her testimony
what had occurred in that phone call:
Cite as 303 Or App 504 (2020) 509
“I was almost getting ready for bed. It was just after
12 o’clock. And the phone rang, and I answered it because I
thought it was [an] emergency. And he started talking and
I thought, well, I knew this person * * * his voice sounded
like somebody else I knew.
“And then he kept going, ‘You know who I am. Remember
me? Joe.’
“And I * * * told him not to call me. And I was so scared,
I hung up the phone. I dropped the phone and [I] ended
up on the kitchen wall, screaming and crying. And then I
passed out. And then I woke up to my dogs licking my face.”
Defendant also left S multiple voice mail messages. After
telling her pastor and her son “that the bad man found [her]
again” and had called her home, S was convinced by them
that she needed to call the police and report the rape. After
reporting the incident to police, S decided to get a stalking
order against defendant.
Around the same time that defendant decided to
recontact S in May of 2016, defendant sodomized another
victim, T.
B. Crimes Against T
When defendant sodomized T in 2016, T was a
58-year-old widow who supported herself with disability
income because she had neck and “back injuries” and other
“illnesses” that prevented T from working.2
T met defendant in high school, and then recon-
nected with defendant several decades later on the internet.
When T broke up with her boyfriend in Oregon and needed
a place to live, T went to stay with a friend in California.
Defendant was also living in California at that time, and T
and defendant moved in together and started a sexually inti-
mate relationship. After eight months, T needed to return to
Oregon to deal with her animals and her belongings, so T
broke off her relationship with defendant in March of 2012
and returned to Oregon. The breakup did not go well, and
defendant was upset and angry with T for leaving.
2
T suffers from several illnesses, including lupus, fibromyalgia, rheumatoid
arthritis, and diabetes.
510 State v. Rideout
T moved into an RV on her sister, E’s, property. T
remained in contact with defendant, but “it was not good”
because “[h]e was very angry.” A few months later, defendant
moved back to Oregon. Although T spoke with defendant on
the telephone and they “would sometimes argue,” the two
remained “completely separated for 18 months.” Eventually,
T injured herself, and, in 2014, defendant returned to stay
in T’s RV to help T while she recovered.
After defendant started staying with T at her RV
in 2014, T and defendant would get into verbal disputes,
oftentimes revolving around defendant’s “sexual” and “dirty
talk” to T. They maintained a consensual sexual relation-
ship during that time, but what had started as a consensual
sexual relationship, eventually became nonconsensual when
defendant would “not take ‘no’ for an answer.” T explained
that the first time that she “woke up to [defendant] in [her],”
she told defendant,
“[d]o not try to have sex with me when I’m sleeping. Do not
just ram yourself into me. I will not tolerate that behavior.
I’m on meds that do not let * * * me wake up. I don’t know
what you’re doing * * * when you do that. That’s not right to
me. I won’t put up with it.”
T thought that defendant understood, and defendant left for
the time being.
Another night, T awoke to find that defendant was
having sex with her again while she slept. Defendant then
proposed marriage to T, which she declined. The next morn-
ing, T awoke to find that defendant was behind her, “had
rammed himself in [T], rolled [her] over, and was ripping
[her] hair” pulling T backwards. T could not fight defen-
dant because of her neck injuries. E heard “blood-curdling
screaming” coming from T’s RV so she pounded on the door
and threatened to chop it down with an axe. When defen-
dant opened the door, T was “screaming for him to get the
hell out.” Defendant left after E threatened to call 9-1-1, but
not before telling E, “if I can’t have your sister, then no one
will.”3
3
Defendant was not charged for those incidents in this case.
Cite as 303 Or App 504 (2020) 511
Although T “felt better” once defendant was gone,
she was still “very distraught” because she did not “believe
that [defendant] would do that to [her], ever.” During T’s
relationship with defendant, E also noticed “[c]onsiderable
changes” in T’s demeanor. Specifically, E observed that T
“wasn’t changing her clothes, she wasn’t showering. She
wasn’t taking care of herself. She was depressed.” About
two weeks after the altercation with defendant, E noticed
that T “would not take off [her] stocking cap” or bathe, and
“wouldn’t change her clothes.” E got T to remove the stock-
ing cap and, at that point, T disclosed that she had been
sexually assaulted by defendant. E asked T if she wanted to
call the police, but T decided not to because “she was scared
for her life if she did.”
After that incident, T did not stay in a relation-
ship with defendant, but they “spoke once in a while on the
phone” because T “didn’t want any problems.” Then T’s RV
burned down, along with E’s home, and all of T’s posses-
sions. With nowhere to turn and no place to live, T called
defendant and moved into defendant’s trailer, which was on
his mother’s property. T was “emotionally distraught” from
“the fire and the [uncharged] rape,” but T resumed her sex-
ual relationship with defendant. T explained that she had
used marijuana to “tolerate the sex with him,” because T
“felt bad about [her]self” and felt “trapped.”
One night in May of 2016, after smoking some mar-
ijuana and taking her medication to help her sleep, T awoke
to a “painful” sensation and realized that defendant was
inserting his penis in her anus. T was able to get up and
go into another room. T “felt damaged and worse than [she]
had ever in [her] whole life.” T waited for defendant to go to
work, and then called E to come and get her. T moved back
into an RV on E’s property.
Three or four days later, T “broke down” and told one
of the women who worked on E’s property about what defen-
dant had done. That woman told E, and then T reported
the incident to police. After the sexual assaults by defen-
dant, T started having nightmares and could not perform
daily tasks because she was “terrified” to go anywhere and
“hide[s] in [her] house.”
512 State v. Rideout
C. Procedural History
Based on his conduct against S in 2013, defendant
was charged with one count of first-degree rape. The state
prosecuted the rape count on a theory that defendant had
violated ORS 163.375(1)(a) by forcibly compelling S to have
sexual intercourse. The state also charged defendant with
first-degree sodomy, based on his conduct against T in 2016.
The state prosecuted the sodomy count on a theory that
defendant had violated ORS 163.405(1)(d) by engaging in
anal intercourse with T while she was sleeping and, thus,
was physically helpless. A jury convicted defendant of both
counts.
Defendant’s first-degree rape and sodomy convic-
tions triggered the mandatory sentencing provisions of ORS
137.690. As we explained in State v. Carey-Martin, 293 Or
App 611, 613, 430 P3d 98 (2018), that statute “imposes a
mandatory minimum term of 25 years [(300-months)] for
a person who has been convicted of more than one ‘major
felony sex crime.’ ” The term “major felony sex crime” is
defined to include first-degree rape and first-degree sod-
omy. ORS 137.690(b). Moreover, that statute provides that
a “previous conviction” includes “a conviction in the same
sentencing proceeding if the conviction is for a separate
criminal episode * * *.” ORS 137.690(c). Here, there is no
dispute that defendant was convicted of two “major felony
sex crime[s]” that arose from “separate criminal episode[s]”
and, therefore, the trial court was required to sentence
defendant to a “mandatory minimum term of 25 years,”
unless that sentence was constitutionally disproportionate.
ORS 137.690.
The state argued that the court should impose
the mandatory 100-month sentence for defendant’s first-
degree sodomy conviction under ORS 137.700, which also
constituted a “major felony sex crime” under ORS 137.690.
Furthermore, because defendant was also convicted of first-
degree rape, which is another “major felony sex crime,” the
state argued that the court was required to impose the man-
datory minimum 300-month sentence for the rape conviction
under ORS 137.690, and that that sentence should be served
consecutively to defendant’s 100-month sentence for the
Cite as 303 Or App 504 (2020) 513
sodomy conviction. Defendant argued that the 300-month
mandatory minimum sentence would be unconstitutional to
impose on defendant under Article I, section 16, based on
the principles articulated by the court in Rodriguez/Buck,
347 Or 46. Defendant contended that, under Rodriguez/
Buck, he should be sentenced under the guidelines or, in
the alternative, sentenced to “treatment without further
incarceration.”
The trial court concluded, based on defendant’s
argument under Article I, section 16, and Rodriguez/Buck,
that “it is excessive to go to 300[-months] under the cita-
tions concerning this defendant, these victims, and the
facts before this court.” Accordingly, the court declined to
impose the mandatory minimum 300-month sentence for
defendant’s rape conviction under ORS 137.690. Instead,
the court concluded that a constitutionally proportionate
sentence would be the mandatory minimum 100-month sen-
tence required for each conviction of first-degree rape and
first-degree sodomy under ORS 137.700. The trial court
imposed those 100-month sentences consecutively, stating
that a 200-month sentence “is appropriate under the law”
because of “the facts that were revealed in court in the last
three days. Two women, unknown to each other, both vul-
nerable, taken advantage [of] by [defendant].”
II. ANALYSIS
A. Applicable Law
On appeal, the parties reprise their arguments
regarding whether the 300-month term of incarceration
under ORS 137.690 would be constitutionally disproportion-
ate as applied in the circumstances of this case, in viola-
tion of Article I, section 16. Because defendant’s predicate
convictions for the mandatory minimum 300-month sen-
tence under ORS 137.690 resulted from the same trial, and
because defendant “has not previously been punished for
other sex crimes in a way that has given him an opportunity
to reform,” Horseman, 294 Or App at 408, “ORS 137.690 does
not operate as a recidivist statute in this case * * * and * * *
we apply the test set out in Rodriguez/Buck.” Carey-Martin,
293 Or App at 626. Cf. State v. Althouse, 359 Or 668, 685-87,
514 State v. Rideout
375 P3d 475 (2016) (setting out analysis that applies for
sentences imposed under ORS 137.719(1), which presump-
tively requires a life sentence for a felony sex crime con-
viction “if the defendant has been sentenced for sex crimes
that are felonies at least two times prior to the current
sentence”).
In Rodriguez/Buck, the Supreme Court expounded
on foundational principles that it had announced in earlier
cases, including that Article I, section 16, requires that pen-
alties must not “shock the moral sense” of all reasonable
people, and that judicial review of the constitutionality of
penalties will “only in rare circumstances” result in a hold-
ing of unconstitutional disproportionality. 347 Or at 57-58(internal quotation marks omitted). The court explained
that a proper Article I, section 16, analysis must consider at
least these three factors:
“(1) a comparison of the severity of the penalty and the grav-
ity of the crime; (2) a comparison of the penalties imposed
for other, related crimes; and (3) the criminal history of the
defendant.”
Id. at 58.
In Carey-Martin, 293 Or App 611, and Horseman,
294 Or App 398, we applied the Rodriguez/Buck factors to
decide similar constitutional challenges to a trial court’s
imposition of a 300-month prison term under ORS 137.690
for multiple convictions for using a child in a display of sex-
ually explicit conduct, ORS 163.670. We only briefly discuss
the facts and holdings from those cases at this point because
we discuss the application of the Rodriguez/Buck factors in
those cases more fully in our analysis below.
In Carey-Martin, we held that the 300-month prison
term was unconstitutionally disproportionate as applied to
a teenaged defendant whose sexual-display convictions were
based on “sexting” activity with girls who were only a few
years younger than him, and whose convictions for other sex
crimes against those victims were based on the girls’ ages
and attendant incapacity to consent. Carey-Martin, 293 Or
App at 626-29 (describing the defendant’s conduct). Although
we concluded that a 300-month term of imprisonment is
Cite as 303 Or App 504 (2020) 515
unconstitutional under those circumstances, we noted the
likelihood of “other circumstances where imposing such
a sentence for multiple convictions for using a child in a
display of sexually explicit conduct * * * would be constitu-
tional.” Id. at 643.
In Horseman, we reached the opposite conclusion
regarding a defendant that received a mandatory 300-month
sentence under ORS 137.690 after he was “convicted of
12 sex crimes related to the multiple sexual encounters
he had with teenaged boys when he was in his late 40s,”
including “five counts of using a child in a display of sexu-
ally explicit conduct * * * based on defendant having repeat-
edly induced one of the victims to masturbate while defen-
dant watched.” 294 Or App at 400. After we contrasted the
defendant’s conduct in Horseman with the conduct at issue
in Carey-Martin, we concluded that the 300-month sentence
was not unconstitutionally disproportionate. Id. at 414.
As we explain below, the circumstances of this case
more closely resemble the “grossly exploitive nature of [the]
defendant’s sexual pursuit of * * * particularly vulnerable”
victims in Horseman, and an analysis of the three Rodrigez/
Buck factors in this case also leads to the conclusion that this
is not “one of the rare cases in which Article I, section 16,
precludes imposition of the legislatively mandated sen-
tence.” Id.B. Consideration of the Rodriguez/Buck Factors
1. The severity of the penalty and gravity of the crime
We begin our analysis with the first Rodriguez/
Buck factor—“a comparison of the severity of the penalty
and the gravity of the crime”—by examining the severity
of the penalty. 347 Or at 58. “As to the relevant penalty, in
contemporary criminal justice systems, including Oregon’s,
the primary determinant of the severity of a penalty is the
amount of time that the wrongdoer must spend in prison or
jail, if convicted of that offense.” Id. at 60.
As we observed in Carey-Martin, the mandatory
minimum 300-month prison term that defendant would
have received under ORS 137.690 as a result of his
516 State v. Rideout
convictions for first-degree rape and first-degree sodomy is
among “Oregon’s most severe punishments for any crime.”
293 Or App at 643. However, when viewed in the context of
the specific conduct at issue here, the 300-month sentence
under ORS 137.690 is not so disproportionate as to “shock
the moral sense of all reasonable people.” Rodriguez/Buck,
347 Or at 54. Accordingly, we turn to our examination of the
gravity of the offense, and its relationship to the severity
of the crime, because “we do not consider that severity in a
vacuum; rather we compare it to the gravity of the crime[s]”
and, in doing so, we look at the range of conduct prohib-
ited by ORS 163.405 and ORS 163.375—the first-degree
sodomy and first-degree rape statutes—because those were
the major felony sex crimes that triggered the application
of ORS 137.690 in this case. Horseman, 294 Or App at 409(internal quotation marks omitted). Furthermore, when we
compare the severity of the penalty to the gravity of the
crimes, “we also consider the specific conduct in which defen-
dant engaged, using case specific factors such as character-
istics of defendant and the victims, the relationship between
defendant and the victims, and the harm to the victims.” Id.(emphasis in original; internal quotation marks omitted).
Under ORS 163.375, a person commits the crime of
first-degree rape when that person “has sexual intercourse
with another person,” and, under ORS 163.405, a person
commits the crime of first-degree sodomy when that person
“engages in oral or anal sexual intercourse with another
person or causes another to engage in oral or anal sexual
intercourse,” if the victim is “subjected to forcible compul-
sion by the actor,” is “under 12 years of age,” is “under 16
years of age and is the actor’s brother or sister, of the whole
or half blood, the son or daughter of the actor or the son or
daughter of the actor’s spouse” or is “incapable of consent by
reason of mental defect, mental incapacitation or physical
helplessness.” Unlike the first-degree sexual abuse statute
at issue in Rodriguez/Buck, which criminalized a “broad
range of conduct,” 347 Or at 69, the crimes of first-degree
rape and first-degree sodomy both encompass far more
specific conduct—viz., “sexual intercourse” for first-degree
rape and “oral or anal sexual intercourse” for first-degree
sodomy, and defendant’s conduct falls squarely within what
Cite as 303 Or App 504 (2020) 517
constitutes those forms of intercourse.4 Moreover, the spe-
cific circumstances that made defendant’s conduct of engag-
ing in vaginal and anal intercourse unlawful—forcibly
compelling S to engage in sexual intercourse and engaging
in anal sexual intercourse with T while she was physically
helpless—is, for the reasons expressed below, as grave as
any of the other attendant circumstances listed in ORS
163.375 and ORS 163.405, and defendant does not contend
otherwise. Indeed, defendant acknowledges that “they are
serious crimes.”
Because of the “physical and sexual content, inva-
sion of the body of the victim[s], and * * * psychological
impact [of defendant’s crimes],” Rodriguez/Buck, 347 Or at
76, the conduct underlying defendant’s convictions in this
case falls on the more serious side of the criminal conduct
triggering the mandatory 300-month sentence under ORS
137.690. See id. at 75-76 (observing that one defendant’s con-
duct of momentarily touching a child’s head with her clothed
breasts and the other defendant’s conduct of momentarily
touching a child’s clothed buttocks was less serious than the
conduct “constituting second-degree sodomy, second-degree
rape, and second-degree sexual penetration,” because of the
“physical and sexual content, invasion of the body of the
victim, and likely psychological impact [of those crimes],
* * * even when the victim is over 18”); Carey-Martin, 293
Or App at 636-37 (observing that the defendant’s conduct of
“sexting” that resulted in his predicate convictions for using
a child in a display of sexually explicit conduct is “much less
severe and harmful to * * * victims” than the “offense of rape
by forcible compulsion”). The fact that defendant’s conduct
falls on the more serious side of the spectrum of criminal
conduct that triggers the mandatory 300-month sentence
under ORS 137.690 further supports our conclusion that
4
ORS 163.405 (2017) criminalized nonconsensual “deviate sexual inter-
course,” which was defined under ORS 163.305(1) (2017) as “sexual conduct
between persons consisting of contact between the sex organs of one person and
the mouth or anus of another.” The legislature amended ORS 163.405 in 2017 and
replaced the phrase “deviate sexual intercourse” with “oral or anal sexual inter-
course.” Or Laws 2017, ch 318, § 5. We cite the current version of ORS 163.405
because the legislature used the same definition for “oral or anal sexual inter-
course” under ORS 163.305 as it had for “deviate sexual intercourse,” and, there-
fore, that amendment does not affect our analysis. Or Laws 2017, ch 318, § 2.
518 State v. Rideout
the 300-month sentence would not be disproportionate to
impose in this case. Here, defendant forcibly compelled S to
engage in sexual intercourse and anally sodomized T while
she was sleeping and, thus, physically unable to thwart
the sexual assault. That is wholly unlike the “sexting” in
Carey-Martin, which we observed was “common among teen-
agers” and “commonly viewed among teenagers as a form
of voluntary sexual activity.” 293 Or App at 634-35. In this
case, defendant’s sexual activity with the victims cannot be
viewed as a common form of consensual sexual activity.
Moreover, the trial court found that defendant’s
conduct was aimed at particularly “vulnerable” victims
because, in this case, T and S were both in their 50s, wid-
owed, and suffered from physical and psychological ail-
ments that resulted in both T and S receiving disability
income. Additionally, both of the incidents occurred after
the women had taken medications that would render them
less capable of thwarting defendant’s sexual assaults, and
neither victim had an opportunity to refuse to engage in
the conduct. Compare Carey-Martin, 293 Or App at 635-36(noting that the defendant “neither was physically present
when the victims made the nude self-portraits nor was he
there to direct them to engage in poses or sexual behavior
while he recorded them”) with Horseman, 294 Or App at 411(observing that, unlike the victims in Carey-Martin that had
the opportunity to reflect on their actions before choosing to
go forward, “[t]he same kind of opportunity is not available
to a sometimes-homeless boy who has gone into the bath-
room of a fast-food restaurant with a middle-aged man who
has promised to buy the boy something to drink if he will
display himself masturbating”).
Defendant’s sexual assaults also caused both T and
S “psychological harm.” Id. at 410. After the rape in 2013, S
became suicidal, resulting in her hospitalization, and she
had to move out of the house where the rape had occurred and
receive counseling and medication before she felt “stable.”
But defendant shattered S’s stability and “threw [S] back to
the rape” when defendant called her three years later. That
drove S’s anxiety “through the roof” and prompted her deci-
sion to contact the police and obtain a stalking order against
defendant in 2016. T was also traumatized by defendant’s
Cite as 303 Or App 504 (2020) 519
conduct throughout their relationship and was “very dis-
traught” because she did not “believe that [defendant] would
do that to [her], ever.” As discussed, although T was “still
emotionally distraught” from “the fire and the [uncharged]
rape” because she could not “believe that [defendant] would
do that to [her],” T resumed her sexual relationship with
defendant and moved in with him, but she “felt bad about
[her]self” and felt “trapped.” Defendant exploited T’s dire
financial circumstances and the loss of her home in the fire
to resume his relationship with T, which ultimately provided
defendant with the opportunity to sodomize her. And, after
defendant sodomized T, T started having nightmares and
could not perform daily tasks because she was “terrified” to
go anywhere and “hid[ ] in [her] house.” As T explained, she
“felt damaged and worse than [she] had ever in [her] whole
life.” The psychological harm that the victims suffered also
indicates that the 300-month sentence under ORS 137.690 is
not constitutionally disproportionate to defendant’s conduct.
Defendant contends that his “advanced age * * *
weighs in favor of disproportionality” because “an additional
100 months in prison could very well mean a life sentence for
defendant, presenting him with no opportunity to reform.”
But defendant does not cite any authority for the proposi-
tion that his decision to commit multiple sexual assaults
as a mature adult in his late 50s, which may result in him
spending the rest of his days behind bars, somehow makes
his conduct less egregious or makes defendant less culpable
for his actions. On this record, defendant’s actions cannot
be attributed to his age, and defendant does not argue that
he had any sort of intellectual disability due to his age. See
State v. Ryan, 361 Or 602, 625, 396 P3d 867 (2017) (evidence
of a defendant’s intellectual disability is relevant when
“making the proportionality comparison” under “the first
Rodriguez/Buck factor”); State v. Allen, 294 Or App 301,
315-16, 432 P3d 250 (2018) (observing that the “transience of
youth justifies a constitutional distinction between permis-
sible punishment for a juvenile and an adult whose crimes
are otherwise identical” and remanding for resentencing so
the trial court would “have an opportunity to consider the
transience of defendant’s youth and any concomitant suscep-
tibility to reformation” (internal quotation marks omitted));
520 State v. Rideout
State v. Sokell, 273 Or App 654, 658, 362 P3d 251 (2015),
aff’d, 360 Or 392, 380 P3d 975 (2016) (observing that the
“defendant was 71 years old at the time of sentencing—a
fact that inevitably will decrease any differential between
the life sentence that defendant received under ORS 137.719
and the otherwise-applicable Measure 11 sentence” (empha-
sis added)).
When the severity of the 300-month penalty is con-
sidered in light of the particular circumstances of this case,
the first Rodriguez/Buck factor does not suggest that that
sentence is unconstitutionally disproportionate.
2. Penalties for other related crimes
Because defendant was convicted of a sex crime,
“comparing the conduct constituting the crime and the
penalty here to other sex crimes is useful in determin-
ing whether the penalty is proportioned to the offense.”
Rodriguez/Buck, 347 Or at 65. In particular, we “consider
the penalties imposed for other [sex] crimes that have simi-
lar characteristics to the [sex] crime[s] at issue” here. Id.Here defendant’s sex crimes involved a physi-
cal invasion of the victims’ bodies without their consent.
Three sex crimes under the criminal code share those
similarities, two of which defendant stands convicted of in
this case—first-degree rape, ORS 163.375, and first-degree
sodomy, ORS 163.405. The third similar sex crime that
involves a physical invasion of the victim’s body is first-
degree unlawful sexual penetration, ORS 163.411.5 See
State v. Shaw, 233 Or App 427, 435, 225 P3d 855, rev den,
348 Or 415 (2010) (observing that second-degree sodomy,
second-degree rape, and second-degree sexual penetration
are “related offenses” because “those offenses involve some
sexual penetration of the victim”). Under ORS 137.700, all
of those crimes yield the same 100-month sentence, except
for when those crimes are committed against a child under
5
ORS 163.411 provides that a person commits the crime of first-degree
unlawful sexual penetration “if the person penetrates the vagina, anus or penis
of another with any object other than the penis or mouth of the actor and” the
victim “is subjected to forcible compulsion, is “under 12 years of age,” or “inca-
pable of consent by reason of mental defect, mental incapacitation or physical
helplessness.”
Cite as 303 Or App 504 (2020) 521
12 years of age, and all of those crimes can trigger the
application of the mandatory 300-month sentence under
ORS 137.690. Thus, a comparison to the penalties for the
related crime of first-degree unlawful sexual penetration
suggests that the penalties for first-degree rape and first-
degree sodomy are proportionate—especially when, as
here, defendant committed those physically invasive sex-
ual crimes against two vulnerable victims.
Finally, this is not a case where defendant received
a shorter sentence for crimes that involved actual sexual
contact with the victims than he did for crimes that did not
involve any physical contact whatsoever. See Horseman, 294
Or App at 412-13 (“Although we can conceive of violations of
[the using a child in a display of sexually explicit conduct
statute] * * * so egregious and wholly destructive of child
victims that it would not be surprising for the crimes to be
punished more severely than certain physical sex crimes,
that is not true in this case, particularly because defen-
dant’s crimes did not involve displaying [the victim]—either
in person or through recorded image—to anybody other
than defendant himself.”); Carey-Martin, 293 Or App at 640(“[W]e * * * cannot conclude that the harm of defendant’s con-
duct in requesting sexually explicit images is of a magnitude
so much greater than the harm of engaging in physical sex-
ual activity that it deserves sentences far greater than could
be imposed for rape and sodomy by reason of the victims’
incapacity to consent.”). Thus, a comparison to the penalties
for other related crimes under the second Rodriguez/Buck
factor indicates that the 300-month sentence under ORS
137.690 for defendant’s first-degree rape and first-degree
sodomy convictions is proportionate.
3. Criminal history
With regard to the third factor—the defendant’s
criminal history—“[t]raditional understandings of propor-
tionality * * * require us to consider whether a defendant is
a repeat offender by considering previous criminal convic-
tions and whether there is evidence of multiple instances
of uncharged wrongful conduct.” Rodriguez/Buck, 347 Or at
78. Furthermore, we “take into account not only the number
of previous offenses and uncharged incidents, but whether
522 State v. Rideout
the record indicates that a defendant is incorrigible or that
attempts to reform would fail.” Horseman, 294 Or App at
413 (internal quotation marks omitted). In Horseman, the
defendant “had a long history of being accused of sexual
predation against young teenaged boys” and “had been con-
tacted by police officers at least twice * * * about reports that
he had engaged in sexual activity with such children” and
therefore had the opportunity to understand and reform his
behavior. Id. at 413-14.
Here, there were likewise multiple instances of
uncharged conduct by defendant, and defendant persisted
in committing sexual crimes despite repeatedly having been
confronted about that behavior. That is, there were other
instances of similar uncharged sexual conduct that defen-
dant committed against T before he sodomized her. As T
described in her testimony, defendant would “not take ‘no’
for an answer” and he “had rammed himself in [T’s]” vagina
on multiple occasions while T was sleeping. On one of those
occasions, T awoke to find that defendant was behind her,
“had rammed himself in [T], rolled [her] over, and was rip-
ping [her] hair” pulling T backwards. Defendant continued
until E heard “blood-curdling screaming” coming from T’s
RV and threatened to chop the door down with an axe and
call 9-1-1.
Nevertheless, defendant persisted in his wrongful
sexual behavior, which ultimately culminated in the charged
act of sodomy against T. Defendant committed the charged
act of sodomy against T despite having been repeatedly con-
fronted about his violent sexual behavior. As discussed, the
first time that defendant raped T while she was sleeping, T
told defendant,
“[d]o not try to have sex with me when I’m sleeping. Do not
just ram yourself into me. I will not tolerate that behavior.
I’m on meds that do not let me * * * wake up. I don’t know
what you’re doing * * * when you do that. That’s not right to
me. I won’t put up with it.”
T thought that defendant understood, and defendant left.
Nevertheless, defendant persisted in that behavior and com-
mitted the uncharged rape discussed above where defendant
violently raped T until E threatened to chop the RV door
Cite as 303 Or App 504 (2020) 523
down with an axe and call 9-1-1. Moreover, defendant com-
mitted violent sexual acts against T after he had already
been confronted by Nichole and members of S’s church for
forcibly raping S in 2013. Finally, even after all of those
confrontations about the wrongfulness of his behavior and
chances to avoid arrest, defendant called S three years after
the rape, which culminated in S finally obtaining a stalking
order and contacting the police.
In short, despite the fact that defendant has never
been criminally punished before for a sex crime and subjected
to formal efforts to reform his behavior, this case involves
multiple instances of similar uncharged conduct, and defen-
dant was repeatedly confronted about that behavior and has
had multiple opportunities to understand the wrongfulness
of his actions. Accordingly, the third Rodriguez/Buck fac-
tor also weighs in favor of a conclusion that the 300-month
prison term is not unconstitutionally disproportionate.
III. CONCLUSION
In sum, unlike the “sexting” conduct of the teen-
aged defendant in Carey-Martin, conduct which “the voters
never intended [ORS 137.690] to include,” 293 Or App at 633,
“[t]he defendant in the present case * * * is a ‘poster child’ for
this type of legislation.” State v. Meyrovich, 204 Or App 385,
393, 129 P3d 729, rev den, 340 Or 673 (2006). As Judge James
observed in his concurrence in Carey-Martin, “ORS 137.690,
passed by the voters as part of Measure 73, was designed
and marketed to the voting public as a measure targeting a
small group of offenders described as ‘the worst,’ ‘predators,’
‘violent,’ ‘serial rapists,’ and ‘serial child pornographers.’ ” 293
Or App at 672-73 (James, J., concurring). Here, defendant’s
conduct involved physically invasive violent sexual assaults
against two vulnerable victims. Moreover, despite being
repeatedly confronted about the wrongfulness of his con-
duct, defendant persisted in his predatory behavior towards
the victims. An application of all three Rodriguez/Buck fac-
tors to the circumstances of this case leads us to conclude
that this is not “one of the rare cases in which Article I, sec-
tion 16, precludes imposition of the legislatively mandated
sentence.” Horseman, 294 Or App at 414. Accordingly, the
trial court erred when it concluded that the imposition of the
524 State v. Rideout
mandatory 300-month sentence would be unconstitutionally
disproportionate under the circumstances of this case. We
therefore reverse and remand for resentencing.
On appeal, affirmed; on cross-appeal, reversed and
remanded for resentencing.