State v. Marker

Summarized by:

  • Court: Oregon Court of Appeals
  • Area(s) of Law: Criminal Law
  • Date Filed: 06-18-2014
  • Case #: A151727
  • Judge(s)/Court Below: Tookey, J. for the Court; Sercombe, P.J.; & Hadlock, J.
  • Full Text Opinion

Under ORS 163.305(5), a person who is asleep is “physically helpless.”

Defendant was convicted by a jury of sexual assault in the first degree. The victim and defendant had been in a romantic relationship for about one month; after the relationship had ended, victim awoke to find defendant in her bed touching her. Defendant moved for a judgment of acquittal, arguing victim was not “physically unable to communicate willingness,” which was denied. On appeal, defendant argued a distinction between unconscious and asleep, saying that if a person is asleep they are “merely inactive or dormant” and not “physically helpless.” The Court was not persuaded by defendant’s argument and held, regardless of the ability to wake up, a person is physically helpless when asleep. Affirmed.

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