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State v. Guckert

Summarized by: 

Date Filed: 12-18-2013
Case #: A147795
Schuman, P.J. for the Court; Duncan, J.; and Nakamoto, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A147795.pdf

Criminal Law: An indictment that alleges specific sexual touching need not be proven wherein the indictment is more specific than the legal standard in ORS 163.427.

Defendant appealed his jury conviction. Defendant and victim attended a party at victim's home. Drinking ensued and Defendant became drunk. Defendant, after luring victim into the bathroom of the residence, choked victim until she was unconscious, disrobed her, and removed her tampon before victim's boyfriend and acquaintance subdued Defendant and called police. Defendant argued that because the indictment alleges Defendant touched victim's vagina that actual touching of that type subsequently requires proof in order to meet the legal standard set forth in ORS 163.427. The Court declined to adopt Defendant's proposed rule instead adopting a "permissible inference" rule, and held that the jury's inference regarding Defendant's act of extricating victim's tampon necessarily required touching of the sort prohibited by ORS 163.427 was permissible. Affirmed.