STATE v. CANO MAGIN (2026)

Defendant appeals from a judgment of conviction, following a jury trial, for one count of first-degree rape, ORS 163.375 (Count 2); one count of first-degree unlawful sexual penetration, ORS 163.411 (Count 3); and one count of first-degree sexual abuse, ORS 163.427 (Count 4).¹ The charges related to an incident in which defendant sexually assaulted his former girlfriend, N, in the cab of defendant's truck. In his first two assignments of error, defendant asserts that the trial court erred by denying his motion for a judgment of acquittal (MJOA) on the unlawful sexual penetration and sexual abuse counts because the evidence was legally insufficient to prove that he subjected N to forcible compulsion. As explained below, we conclude that the evidence was legally sufficient to find the forcible compulsion element beyond a reasonable doubt, and we therefore conclude that the trial court did not err in denying the MJOA. In his third and fourth assignments of error, defendant argues that the trial court plainly erred in failing to declare a mistrial after the prosecutor made improper and inflammatory comments during closing arguments. We conclude that the trial court did not plainly err, and we therefore affirm.

FORCIBLE COMPULSION

In reviewing the denial of an MJOA, we view the evidence in the light most favorable to the state to determine whether a rational factfinder could find that the state had proven the essential elements of the offense beyond a reasonable doubt. State v. Lupoli, 348 Or 346, 366, 234 P3d 117 (2010). We state the facts in accordance with that standard.

Defendant and N dated for a while, and N broke up with defendant in January 2022. Over the following couple of months, they continued to see each other and occasionally engaged in consensual sexual encounters. At the end of March 2022, the two of them went out one evening and eventually got into an argument. When defendant finally agreed to drive N home, N fell asleep in his truck. She awoke to defendant stopping the truck and groping her breasts and body. Defendant moved onto the middle seat between the driver and passenger seats, and when N opened the passenger door to escape the truck, defendant reached across N to physically close the door. N testified that she tried to open the door multiple times, with defendant closing it each time, as he continued to touch her against her will. Defendant then positioned himself on the passenger seat with N, reclined the seat, and proceeded to touch N's breasts and to open N's pants and digitally penetrate her vagina. He eventually removed her pants, penetrated her with his penis, and laid on top of her. He eventually released her, and she called her daughter's boyfriend to come pick her up, called the police, and went to the hospital.

Defendant was charged with first-degree unlawful sexual penetration (Count 3), based on his digital penetration of N's vagina, and first-degree sexual abuse (Count 4), based on his touching of her breasts. On appeal, defendant appeals his convictions for those two counts, arguing that the state failed to prove that he subjected N to forcible compulsion in the completion of those acts.²

A person commits the crime of first-degree unlawful sexual penetration, as charged here, when the person “penetrates the vagina, anus or penis of another with any object and: (a) the victim is subjected to forcible compulsion.” ORS 163.411(1)(a).³ A person commits the crime of first-degree sexual abuse when the person “subjects another person to sexual contact and * * * the victim is subjected to forcible compulsion by the actor.” ORS 163.427(1)(a)(B). For both statutes, forcible compulsion means “to compel by * * * physical force.” ORS 163.305(1)(a).⁴

In order to qualify as forcible compulsion, the force employed need not rise to the level of violent, dominating force, but “the level of force that is involved must be greater than or qualitatively different from the simple movement and contact that is inherent in the action of touching an intimate part of another,” and it must be “sufficient to ‘compel’ the victim, against the victim's will, to submit to or engage in the sexual contact[.]” State v. Marshall, 350 Or 208, 221, 225, 253 P3d 1017 (2011). Furthermore, we have held that “there is no requirement that the physical force applied by a defendant must be applied directly to the victim's physical body to constitute forcible compulsion[.]” State v. Digesti, 267 Or App 516, 523, 340 P 3d 762 (2014), rev. den., 357 Or 111 (2015) (concluding that the defendant's act of holding a bathroom door closed with his foot while the victim attempted to open it in order to escape from the defendant groping her supported a finding that the defendant subjected the victim to physical force in a way that compelled her to submit to the sexual contact).

We conclude that the evidence was sufficient to support a finding that defendant subjected N to forcible compulsion in the time immediately leading up to and when touching N's breasts and digitally penetrating her vagina. N's testimony supported a finding that defendant used his body to restrain N by getting onto her seat, reached over her repeatedly to close the truck door to prevent her escape, reclined her seat to place her in a more vulnerable horizontal position, and undid her pants against her will. All of those acts, under the circumstances, constitute force greater than or qualitatively different from the acts of touching her breasts or digitally penetrating her vagina, and they support a finding that it was defendant's use of that force that allowed him to subject N to the unwanted contact.⁵ The court did not err in denying defendant's MJOA.

CLOSING ARGUMENT

In his third and fourth assignments of error, defendant asserts that he did not receive a fair trial because the prosecutor made improper statements in closing argument that were so prejudicial as to have required a mistrial. Defendant did not object to the statements when they were made, so he requests plain-error review.

For a prosecutor's statements in closing argument to rise to the level of plain error, it must be “beyond dispute” that they “were so prejudicial as to have denied defendant a fair trial.” State v. Chitwood, 370 Or 305, 312, 518 P3d 903 (2022) (internal quotation marks omitted). To meet that standard, the statements, individually or collectively, must have been both obviously improper and incurable. State v. Perez, 373 Or 591, 606, 568 P3d 940 (2025); see also State v. Federico, 375 Or 473, 490, ––– P3d –––– (2026).

A statement is obviously improper if its only possible interpretation makes it an impermissible remark, whereas a statement is not obviously improper if it is susceptible to more than one interpretation, at least one of which was permissible. Id. at 607. As for curability, “prosecutorial statements that were improper but curable are not an appropriate subject of plain-error review, because, in such circumstances, the defendant was not denied a fair trial.” State v. Durant, 327 Or App 363, 365, 535 P3d 808 (2023), rev. den., 374 Or 143 (2025) (emphasis in original). “That is important because, ‘[g]enerally, a proper jury instruction is adequate to cure any presumed prejudice from a prosecutor's misconduct.’ ” State v. Babcock, 327 Or App 358, 360, 535 P3d 345 (2023), rev. den., 374 Or 143 (2025) (quoting State v. Davis, 345 Or 551, 583, 201 P3d 185 (2008), cert. den., 558 US 873 (2009)). Only if “no curative instruction would have been effective” can it be said that a mistrial was required and the error plain. Perez, 373 Or at 605.

In closing argument, the state recounted the testimony from various witnesses and walked through the elements of the charges. In response, defendant maintained that the sexual encounter was consensual, casting defendant's actions as those of an innocent man who believed he had had consensual sex with a partner, and challenging N's credibility by identifying inconsistencies in her story and reasons why she could have been motivated to lie. In rebuttal closing, the state argued that any inconsistencies in N's story were understandable or inconsequential, focused on her consistency with respect to the big picture, and argued that her actions and demeanor supported a conclusion that she was telling the truth. At the end of rebuttal, the prosecutor argued that N was trying to reclaim her dignity by coming forward and testifying. In an aside, the prosecutor wondered how it was biologically possible that defendant had sustained an erection in the face of N crying, saying no, and telling him to stop, and likened the rape to defendant masturbating with the victim's body in arguing that he did not care what she wanted or consented to.

Defendant argues that those comments were graphic and inflammatory, urged the jury to react to defendant with horror and disgust, and expressed the prosecutor's personal opinion that defendant was deviant if he could be aroused under those circumstances. Defendant argues that the comments were so improper that any curative instruction would have had no effect and the only proper course of action was to declare a mistrial.

We disagree. Even assuming arguendo that the comments were improper, we are unpersuaded that any improper effect could not have been countered by a curative instruction. The statements did not invite the jury to convict on an improper basis, did not confuse the burden of proof or comment on defendant's rights, and were only brief comments at the end of an argument, the vast majority of which focused on the evidence presented at trial and why that evidence supported a guilty verdict. While we are not convinced that the prosecutor's musings on the nature of rape and sexual psychology were particularly relevant to the matter, there is no basis for us to conclude that a jury instruction to disregard the comments “would not have been sufficiently curative to assure the court * * * that the defendant received a fair trial.” Chitwood, 370 Or at 312; see also State v. Washington, 355 Or 612, 660, 330 P3d 596, cert. den., 574 US 1016 (2014) (“Generally, a proper jury instruction is adequate to cure any presumed prejudice from a prosecutor's improper statement.”).

Affirmed.

FOOTNOTES

1.   Two additional counts, for second-degree kidnapping and fourth-degree assault, were dismissed on the state's motion.

2.   Defendant does not raise that argument in relation to the forcible compulsion element of the first-degree rape conviction.

3.   As used in that statute, “object” includes any body part of the actor. ORS 163.411(3).

4.   Forcible compulsion can also be proved by threats. ORS 163.305(1)(b). There was no allegation or evidence that defendant threatened N.

5.   For comparison, see our opinion, also issued today, in State v. Soto, 352 Or App 269, ––– P3d –––– (Aug. 19, 2026), in which we conclude that the record was insufficient to establish forcible compulsion by physical force due to the lack of evidence that the vaginal penetration was accomplished by any physical force greater than or qualitatively different from the act of penetration, and it did not establish forcible compulsion by threats that placed the victim in fear of immediate or future death or physical injury.

SHORR, P. J.