State v. Marker

Defendant appeals a judgment of conviction for sexual abuse in the first degree, ORS 163.427, arguing that the trial court erred when it denied his motion for judgment of acquittal. A person commits sexual abuse in the first degree when that person “[s]ubjects another person to sexual contact and * * * [t]he victim is incapable of consent by reason of being *** physically helpless [.]” ORS 163.427(1)(a)(C). A person is “physically helpless” if that person “is unconscious or for any other reason is physically unable to communicate unwillingness to an act.” ORS 163.305(5). The issue in this…