Preview:

FILED: October 24, 2012
IN THE COURT OF APPEALS OF THE STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,

v.

EMMIT JOHN SULLIVAN,
Defendant-Appellant.

Jackson County Circuit Court 090237FE
A143645
Lisa C. Greif, Judge.
Submitted on March 22, 2012.
Peter Gartlan, Chief Defender, and Anne Fujita Munsey, Senior Deputy Public Defender,

Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Andrew M.
Lavin, Assistant Attorney General, filed the brief for respondent.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
WOLLHEIM, J.
Affirmed.

1  WOLLHEIM, J.  
2  A jury found defendant guilty of two counts of sodomy in the first degree,  
3  ORS 163.405, and two counts of sodomy in the second degree, ORS 163.395.  On appeal,  
4  defendant asserts that the trial court erred in denying his request for a jury instruction.  
5  Defendant argues that the state presented two theories about how the jury could find the  
6  required element of forcible compulsion--that is, physical force or a threat--to commit  
7  sodomy in the first degree, and the court should have instructed the jury that it had to  
8  agree on the theory for defendant's guilt.  Accordingly, defendant argues, the trial court  
9  was required to instruct the jury that it had to agree on the type of forcible compulsion  
10  defendant used.1  The state contends that forcible compulsion is an element of the crime  
11  of sodomy in the first degree and that the state was permitted to present alternative  
12  evidence to establish that element. We agree with the state and therefore affirm.2  
13  "We review a trial court's refusal to give a requested instruction for errors  
14  of law in light of the facts that are most favorable to defendant."  State v. Greeley, 220 Or  
15  App 19, 21, 184 P3d 1191 (2008).  
16  Defendant and the victim met in the summer of 2007, when the victim was  
17  13 years old and defendant was 35, and they lived in the same trailer park.  At trial, the  
18  victim testified that one time defendant made her get on her knees and suck his penis and  
1  Defendant does not assign any error pertaining to his convictions for second

Download A143645.pdf

Oregon Law