State v. Valdez
State v. Valdez
Opinion of the Court
Defendant petitions for reconsideration of our opinion, State v. Valdez, 283 Or App 77, 388 P3d 396 (2016), contending that the opinion contains a factual error. We allow reconsideration, modify our opinion as set out below, and adhere to that opinion as modified.
Defendant appealed a judgment of conviction for, among other crimes, two counts of first-degree rape. ORS 163.375. In his third assignment of error, defendant contended that the trial court erred in denying his motion for judgment of acquittal on the second charge of first-degree rape, because there was insufficient evidence to support a finding that defendant raped the victim twice. We determined that the trial court did not err in denying defendant’s motion because, in part, the victim testified that penile penetration occurred “at least twice.” 283 Or App at 83.
We quote from our former opinion’s description of the evidence as it bears on defendant’s third assignment of error:
“[T]he prosecutor used a paper cup to analogize a vagina and asked the victim to distinguish between ‘touching on top’ and ‘insertion.’ The victim testified that both—touching and insertion—happened ‘at least twice.’”
283 Or App at 80. We cited that evidence in support of our conclusion that there was sufficient evidence for a rational trier of fact to conclude that defendant committed two counts of first-degree rape. Id. at 83-84.
However, defendant points out that the prosecutor’s paper cup analogy and the victim’s response to his questions related to defendant’s use of his hands, not his penis. For that reason, defendant asserts that that evidence does not support his second conviction for first-degree rape.
Defendant is correct that we incorrectly understood that the paper cup testimony related to penile penetration. But, despite our misunderstanding, we conclude that the evidence, viewed in the light most favorable to the state, is nonetheless sufficient to support defendant’s convictions. As we described in our original opinion, although the victim
Reconsideration allowed; former opinion modified and adhered to as modified.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.