State v. Bonine ( 2023 )

662
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Argued and submitted April 20, conviction on Count 5 reversed, remanded for
resentencing, otherwise affirmed June 28, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
DONALD JAMES MICHAEL BONINE,
Defendant-Appellant.
Lane County Circuit Court
20CR13294; A176808
Charles M. Zennaché, Judge.
George W. Kelly argued the cause and filed the briefs for
appellant.
Rolf C. Moan, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before Aoyagi, Presiding Judge, and Joyce, Judge, and
Jacquot, Judge.
AOYAGI, P. J.
Conviction on Count 5 reversed; remanded for resentenc-
ing; otherwise affirmed.
Nonprecedential Memo Op: 326 Or App 662 (2023) 663
AOYAGI, P. J.
Defendant was convicted of one count of first-degree
unlawful sexual penetration, ORS 163.411 (Count 1), and
two counts of using a child in a display of sexually explicit
conduct, ORS 163.670 (Counts 3 and 5), based on conduct
involving two children.1 In three assignments of error,
he challenges (1) the denial of his motion for judgment of
acquittal on Count 5; (2) imposition of a 300-month sentence
on Count 1, which he claims is unconstitutionally dispro-
portionate in violation of Article I, section 16, of the Oregon
Constitution; and (3) imposition of a 300-month sentence
on Count 5, which he also claims is unconstitutionally dis-
proportionate. As described below, we reverse defendant’s
conviction on Count 5, reject defendant’s challenge to his
current sentence on Count 1, and reverse and remand for
resentencing on Counts 1 and 3.
Motion for judgment of acquittal on Count 5. On
appeal, we apply the law as it exists at the time of our deci-
sion. State v. Jury, 185 Or App 132, 139, 57 P3d 970 (2002),
rev den, 335 Or 504 (2003). Here, the state concedes that,
in light of our recent opinion in State v. Parra-Sanchez, 324
Or App 712, 527 P3d 1008 (2023), the trial court erred in
denying defendant’s motion for judgment of acquittal on
Count 5. We accept the state’s concession as well taken.
Accordingly, we reverse defendant’s conviction on Count 5.
That obviates the need to address his challenge to the sen-
tence on Count 5.
Sentence on Count 1. Defendant argues that his
300-month sentence on Count 1 is unconstitutionally dis-
proportionate to his crime and thus cruel and unusual
punishment that violates Article I, section 16. Both par-
ties ask us to address the constitutionality of defendant’s
current sentence on Count 1, notwithstanding the fact that
defendant will be resentenced as a result of our reversal of
his conviction on Count 5. See ORS 138.257(4)(a)(A) (“The
appellate court shall remand the case to the trial court
* * * [i]f the appellate court, in a case involving multiple
convictions, reverses at least one conviction and affirms at
1
Defendant was acquitted on Counts 2, 6, 7, 8, 9, 10, 11, and 12. He was
found guilty on Count 4, but that verdict merged with the verdict on Count 3.
664 State v. Bonine
least one other conviction.”); ORS 138.257(4)(b) (“In a case
remanded under this section, the trial court, after issuance
of the appellate judgment, may impose a new sentence for
any conviction.”). We agree that the issue is likely to arise
again on remand, given that defendant’s prison sentence is
the mandatory minimum for first-degree unlawful sexual
penetration of a victim under 12 years of age, and given that
the trial court has already rejected his constitutional argu-
ments. We therefore address it.
Article I, section 16, provides that “[c]ruel and
unusual punishments shall not be inflicted, but all penalties
shall be proportioned to the offense.” “If the mandatory sen-
tence would violate Article I, section 16, a court may impose
a lesser sentence, not as a matter of discretion but to avoid a
constitutional violation.” State v. Lara-Vasquez, 310 Or App
99, 104, 484 P3d 369, rev den, 368 Or 561 (2021). Importantly,
“[a] sentence may be harsh without being unconstitutionally
disproportionate[.]” Id. at 110. We succinctly described our
approach to disproportionality claims in Lara-Vasquez:
“A punishment violates Article I, section 16, only if it
is so disproportionate to the offense as to shock the moral
sense of reasonable people. It is not the role of the courts to
establish penalties for violations of criminal statutes; that
is the province of the legislature and of the people acting
through the initiative process. As such, in applying the pro-
tections of Article I, section 16, courts are not to second-
guess the penalties chosen by the legislature or the people.
It is only in rare circumstances that a statutory penalty
will be deemed so disproportionate as to violate Article I,
section 16. At least three factors bear on whether a punish-
ment is so disproportionate that it would shock the moral
sense of reasonable people: comparing the severity of the
penalty and the gravity of the offense; comparing the pen-
alties imposed for other, related crimes; and the criminal
history of the defendant.”
Id. at 104 (internal quotation marks and citations omitted);
see State v. Rodriguez/Buck, 347 Or 46, 58, 217 P3d 659
(2009) (identifying the three factors).
We first compare the severity of the penalty, 300
months (25 years) in prison, and the gravity of the offense. In
assessing the gravity of the offense, we consider “the general
Nonprecedential Memo Op: 326 Or App 662 (2023) 665
definition of the crime, the specific circumstances and facts
of defendant’s conduct, characteristics of defendant and the
victim, the harm to the victim, the relationship between
defendant and the victim, and other case-specific factors.”
Lara-Vasquez, 310 Or App at 105. Applying those consid-
erations, we conclude that, although 25 years in prison for
a single incident of inserting a Q-tip into a 14-month-old
child’s rectum is quite harsh, it is not greatly disproportion-
ate to the gravity of the offense.
Most significantly, defendant’s conduct falls squarely
within the type of conduct covered by ORS 163.411, rather
than lying at the outer edge of what it covers. A person com-
mits first-degree unlawful sexual penetration if the person
“penetrates” the anus of a person under 12 years of age
with “any object” other than the person’s mouth or penis.
ORS 163.411(1)(b); see also State v. Hoover, 250 Or App 504,
507, 280 P3d 1061, rev den, 352 Or 564 (2012) (holding that
slight penetration is sufficient for first-degree unlawful sex-
ual penetration). Defendant contends that his conduct is less
egregious because, although the record allows an inference
that he acted in part for his own sexual gratification, it also
shows that he acted in part due to a sincere (if misguided)
desire to provide medical care. The jury necessarily found
otherwise, however, when it found defendant guilty of dis-
play for videorecording the incident. See ORS 163.670(1)
(requiring “sexually explicit conduct” by a child as an ele-
ment of the crime of display); ORS 163.665(3)(c) (defining
“sexually explicit conduct” to exclude penetration of the rec-
tum by an object as part of “medical * * * treatment”).
Further, the victim was especially vulnerable due
to his young age and his disability, and defendant was in
a relationship of trust as his foster parent. See State v.
Alwinger, 236 Or App 240, 246, 236 P3d 755 (2010) (stat-
ing that, “although 25 years in prison is a very lengthy sen-
tence, unlawful sexual penetration of a three-year-old is a
very serious crime,” and that the defendant’s “characteriza-
tion of his conduct as a brief and singular act that caused
no physical injury apart from some redness” did not reduce
the severity of the offense, especially as it was committed
against a particularly vulnerable victim). Finally, in addi-
tion to any discomfort that the victim may have experienced,
666 State v. Bonine
defendant’s conduct was “dangerous” (in the doctor’s words)
in that it created the risk of a bowel rupture, which adds to
the risks of harm to the victim. See Rodriguez/Buck, 347 Or
at 59-60 & n 7, 63 (providing for consideration of threatened
harms).
We next compare the penalties imposed for other,
related crimes, as the second factor in assessing a dispropor-
tionality claim. We summarily reject defendant’s compari-
son of his punishment to the sentences for unrelated crimes
such as murder and assault.2 As for defendant’s argument
that the same 25-year mandatory minimum prison sen-
tence applies to the “arguably worse” sexual offenses of first-
degree rape of a child under 12 years of age, ORS 137.700
(2)(b)(D), and first-degree sodomy of a child under 12 years
of age, ORS 137.700(2)(b)(E), it is true that the legislature
has imposed the same mandatory minimum sentence “for
various sexual offenses committed against young children
that, like rape, involve sexual penetration of the victim.”
State v. Shaw, 233 Or App 427, 438, 225 P3d 855, rev den,
348 Or 415 (2010). However, rather than aiding defendant’s
disproportionality claim, that fact indicates to us that the
legislature views each of those offenses as equally grave.
See Alwinger, 236 Or App at 246 (stating that first-degree
unlawful sexual penetration of a child under 12 years of
age and rape of a child under 12 years of age are “similar
enough [offenses] that it is within the legislature’s role to
decide that they justify the same penalty”).
Defendant’s strongest argument regarding the pen-
alties for other, related crimes is that first-degree sexual
abuse, ORS 163.427, carries a 75-month mandatory mini-
mum prison sentence, ORS 137.700(2)(a)(Q). First-degree
sexual abuse includes any “sexual contact” with a person
under 14 years of age. ORS 163.427(1)(a)(A); see ORS 163.431
2
See Rodriguez/Buck, 347 Or at 65 (looking at the penalties imposed for
crimes with “similar characteristics to the crime at issue,” i.e., other Oregon sex
crimes, and noting that it would be difficult to compare unrelated crimes); State
v. Shaw, 233 Or App 427, 437, 225 P3d 855, rev den, 348 Or 415 (2010) (explain-
ing that the defendant’s comparison of the penalties for intentional murder to
the 25-year mandatory minimum sentence for first-degree rape of an 11-year-old
child, the defendant’s crime of conviction, was problematic, in part because it
“asks us to conduct an open-ended inquiry into the relative seriousness of unre-
lated criminal offenses”).
Nonprecedential Memo Op: 326 Or App 662 (2023) 667
(adopting definition of “sexual contact” in ORS 163.305); ORS
163.305(5) (“ ‘Sexual contact’ means any touching of the sex-
ual or other intimate parts of a person or causing such per-
son to touch the sexual or other intimate parts of the actor
for the purpose of arousing or gratifying the sexual desire
of either party.”). It is within the legislature’s purview, how-
ever, to decide that sexual penetration is much more serious
and deserves a much greater penalty than sexual contact.
It is also within the legislature’s purview to decide that an
offense against a child under 12 years of age is especially
egregious. In the end, we are unpersuaded that a compar-
ison of the penalties imposed for other, related crimes sup-
ports defendant’s claim of disproportionality.
The final factor—defendant’s criminal history—
does weigh in his favor. Defendant has no prior criminal
history, and his convictions on Counts 1 and 3 arise from a
single act involving a single victim. Defendant’s lack of crim-
inal history is not enough, however, to overcome the other
considerations that lead us to conclude that his sentence
is not unconstitutionally disproportionate to the offense.
“Although criminal history is one factor that could, along
with the other factors, demonstrate that a penalty is dispro-
portionate under the circumstances of a particular case, the
lack of prior convictions alone has never been sufficient to
render an otherwise constitutional penalty disproportionate
under Article I, section 16.” Shaw, 233 Or App at 439.
“It is not the role of this court to second-guess the
legislature’s determination of the penalty or range of pen-
alties for a crime.” Rodriguez/Buck, 347 Or at 58. Rather,
we may interfere with a legislatively mandated sentence
“only if it is so disproportionate to the offense as to ‘shock
the moral sense’ of reasonable people” and, thus, violates
Article I, section 16. Lara-Vasquez, 310 Or App at 104 (quot-
ing Rodriguez/Buck, 347 Or at 57-58). Having considered
the relevant factors, we cannot say that defendant’s sen-
tence meets that high standard.
Conviction on Count 5 reversed; remanded for
resentencing; otherwise affirmed.