State v. Gasperetti ( 2024 )

No. 719 October 9, 2024 425
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
CHASE GASPERETTI,
Defendant-Appellant.
Marion County Circuit Court
21CR52526; A180626
Courtland Geyer, Judge.
Submitted August 28, 2024.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Emily P. Seltzer, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kirsten M. Naito, Assistant Attorney
General, filed the brief for respondent.
Before Shorr, Presiding Judge, Mooney, Judge, and Pagán,
Judge.
MOONEY, J.
Affirmed.
426 State v. Gasperetti
MOONEY, J.
Defendant appeals a judgment convicting him of
three counts of first-degree rape, ORS 163.375, one count
of first-degree sodomy, ORS 163.405, and one count of first-
degree sexual abuse, ORS 163.427. The convictions were for
conduct that defendant engaged in over the course of one
night with one victim. Defendant waived jury trial and
the matter was tried to the court. Defendant raises three
assignments of error, each of which we reject for the reasons
that follow. We affirm.
Neither the bench, the bar, nor the public would
benefit from a complete recitation of the facts. Suffice it to
say that the victim, the victim’s husband, and defendant had
known each other for years. All three had been drinking at
a bar on the night in question, reaching varying degrees of
intoxication. After leaving the bar, all three ended up at the
victim and her husband’s home. After the victim’s husband
went to bed, defendant raped and sodomized the victim in
the living room, where a surveillance camera recorded those
acts. A number of hours later, after the victim was in the
bedroom she shared with her husband, they had sexual con-
tact. The victim has no memory of leaving the bar, the sex-
ual contact with defendant, or the sexual contact with her
husband.
Defendant first contends that the trial court erred
in denying his motion to dismiss, because the state vio-
lated his rights under Article I, section 20, of the Oregon
Constitution, by charging him, but not the victim’s hus-
band, with sexual assault. In defendant’s view, the victim
was mentally incapacitated during both encounters, and,
therefore, he and her husband were similarly situated when
they had sexual contact with her. Defendant argues that the
prosecuting attorney’s decision to charge him and not the
victim’s husband amounted to the state treating similarly
situated individuals differently in violation of his constitu-
tional right to equal treatment under the law.
We review a trial court’s legal conclusions under
Article I, section 20, for errors of law. State v. Davis, 237
Or App 351, 353, 239 P3d 1002 (2010), aff’d by an equally
Nonprecedential Memo Op: 335 Or App 425 (2024) 427
divided court, 353 Or 166, 295 P3d 617 (2013); see generally
State v. Savastano, 354 Or 64, 309 P3d 1083 (2013) (applying
that standard). Article I, section 20, requires the “govern-
ment to treat similarly situated people the same.” Savastano,
354 Or at 96. “[T]hat provision applies to government actions
generally, including prosecutors making charging deci-
sions.” Id. Where a prosecuting attorney charges similarly
situated people differently, he or she remains in compliance
with Article I, section 20, “as long as there is a rational
explanation for the differential treatment that is reasonably
related” to the prosecutor’s “official task” or to the “individ-
ual situation” of the person being charged. Id. That is to
say, a prosecuting attorney must, in such situations, have “a
defensible explanation in the individual case.” Id. (internal
quotation marks omitted).
The state contends that defendant and the victim’s
husband were not similarly situated and that there is a
rational explanation for the prosecutor’s decision to charge
defendant with sexual assault and not the victim’s husband.
It charged defendant with rape and sodomy under mental
incapacitation and physical helplessness theories because
those theories were supported by the events involving defen-
dant and the victim that were captured on video by the sur-
veillance camera.
As to her husband, there was evidence that the vic-
tim was conscious and responsive, and therefore not physi-
cally helpless, when her husband had sexual contact with
her, notwithstanding her lack of memory about that encoun-
ter. And, importantly, the only evidence that the victim and
her husband had sexual contact that day was the husband’s
own testimony. Given all that, it would be reasonable to con-
clude that the state would be unable to meet its burden of
proof in a case against the victim’s husband. The trial court
did not commit legal error in denying defendant’s motion to
dismiss on this record.
Next, defendant contends that the trial court
applied an incorrect legal standard in denying his motion for
judgment of acquittal, arguing that the state was required
to prove that he knew that the victim was physically help-
less or mentally incapacitated. We rejected that argument
428 State v. Gasperetti
in State v. Phelps, 141 Or App 555, 558-59, 920 P2d 1098,
rev den, 324 Or 306 (1996), and we adhered to Phelps in
State v. Woods, 317 Or App 506, 519, 505 P3d 432, rev den,
370 Or 198 (2022). Defendant’s second assignment of error
is, thus, foreclosed.
Finally, defendant challenges his 240-month aggre-
gate sentence as unconstitutionally disproportionate under
both Article I, section 16, of the Oregon Constitution and
the Eighth Amendment to the United States Constitution.
We rejected a similar challenge to an aggregate sentence in
State v. Horner, 306 Or App 402, 403-04, 474 P3d 394 (2020),
vac’d on other grounds on recons, 309 Or App 136, 481 P3d
442 (2021), and we likewise reject it here.
Affirmed.