State v. Cox

JACKSON, Judge

(dissenting):

This case presents a narrow issue — consent as a defense to rape. If the victim consented, rape was not committed. Defendant admits entering the victim’s home by climbing through a window during the nighttime and the act of sexual penetration.

I would distinguish State v. Featherson, 781 P.2d 424 (Utah 1989), which deals with a similar, but not identical issue. In Featherson, the evidence of prior bad acts was “lustful conduct” of the defendant prior to an “aggravated sexual assault.” Consent to rape was not an issue. The cases relied on in section IB of Featherson are not factually or legally the same as we have here. In those cases, the defendants did not follow through with.rape in the prior incidents. The Oregon case cited in Featherson, State v. Urlacher, 42 Or.App. 141, 600 P.2d 445 (1979), involved sexual advances to two women, but defendant did not proceed when one cried and the other got angry. The court said the evidence was peripheral. I think this case is more like another Oregon case relied upon by the State, Youngblood v. Sullivan, 52 Or.App. 173, 628 P.2d 400 (1981). There, defendant raped and sodomized two women he did not know in restrooms in parks at midday. The court said this evidence of prior acts was admissible to show modus operandi, which rebuts the defense of consent. In this ease, two women known to Cox were raped by him in their homes at night after he knew their male companions were gone. Cox utilized the same modus operandi in this case.

I prefer the rationale of Youngblood based on facts closer to those here. I would therefore affirm defendant’s conviction based on Youngblood and distinguish Featherson as indicated.