278 August 19, 2026 No. 780
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
ALFONSO CORTEZ-ORTA,
Defendant-Appellant.
Multnomah County Circuit Court
20CR49536; A182743
Shelley D. Russell, Judge.
Argued and submitted January 21, 2026.
David Sherbo-Huggins, Deputy Public Defender, argued
the cause for appellant. Also on the brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Oregon
Public Defense Commission.
Michael A. Casper, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Dan Rayfield, Attorney General, and Benjamin Gutman, Solicitor General.
Before Shorr, Presiding Judge, Powers, Judge, and
O’Connor, Judge.
POWERS, J.
Affirmed.
Cite as 352 Or App 278 (2026) 279
POWERS, J.
Defendant appeals from a judgment of conviction for numerous sex crimes committed against his stepdaughters, N and C, challenging his convictions for three
counts of first-degree rape, ORS 163.375 (Counts 1-3), and
one count of first-degree sexual abuse, ORS 163.427 (Count
8). Defendant assigns error to the jury instructions given
regarding those counts, arguing that the trial court erred
by failing to instruct the jury that each of those counts
required a causal connection between the use of forcible
compulsion and the charged sexual act. Defendant asserts
that he preserved that issue below but alternatively asserts that it was a plain error. We conclude that the issue is not preserved, and, assuming without deciding that the trial
court committed plain error, we decline to exercise our discretion to correct under plain error review. Accordingly, we affirm.
STATUTORY DEFINITIONS
AND PROCEDURAL HISTORY
The background of the applicable criminal statutes
and the procedural history frame our discussion regarding
preservation. Defendant’s assignment of error is limited to
four convictions: three for first-degree rape and one for firstdegree sexual abuse. For purposes of the charges at issue,
those crimes are defined as follows:
“(1) A person who has sexual intercourse with another
person commits the crime of rape in the first degree if:
“(a) The victim is subjected to forcible compulsion by
the person.”
ORS 163.375.
“(1) A person commits the crime of sexual abuse in the
first degree when that person:
“(a) Subjects another person to sexual contact and:
“* * * * *
“(B) The victim is subjected to forcible compulsion by
the actor[.]”
280 State v. Cortez-Orta
ORS 163.427. Both crimes, as charged, required proof of
“forcible compulsion,” which, in this case means to compel
by “physical force.” ORS 163.305(1)(a).1
The Oregon Supreme Court has explained that, in
order to prove forcible compulsion, the state must prove that the act or acts constituting forcible compulsion “resulted
in the sexual contact that is the focus of the charge, in the sense that it compelled the victim to submit to or engage
in the contact.” State v. Marshall, 350 Or 208, 227, 253 P3d 1017 (2011). In other words, the physical force must have
caused the sexual contact to be able to occur.
The jury was given the following instructions
regarding the charges at issue in this appeal:
“RAPE IN THE FIRST DEGREE (as Charged in
Counts 1-5)
“Oregon law provides that a person commits the crime
of rape in the first degree if the person knowingly has sexual intercourse with another person and the person knowingly subjects the other person to forcible compulsion.
“In this case, to establish the crime of rape in the first
degree, the state must prove beyond a reasonable doubt the
following elements:
“(1) The act occurred on or between January 1, 2019 and
March 6, 2019;
“(2) [Defendant] knowingly had sexual intercourse with
[N]; and
“(3) [Defendant] knowingly subjected [N] to forcible
compulsion.”
“* * * * *
“SEXUAL ABUSE IN THE FIRST DEGREE
“(Forcible Compulsion)
“Oregon law provides that a person commits the crime of
sexual abuse in the first degree when the person knowingly
subjects another person to sexual contact and the person
knowingly subjects the other person to forcible compulsion.
1
Forcible compulsion can also mean to compel by threats. ORS 163.305(1)(b). The theory of the crimes in this case, however, did not include forcible compulsion by threats.
Cite as 352 Or App 278 (2026) 281
“In this case, to establish the crime of sexual abuse in
the first degree, the state must prove beyond a reasonable
doubt the following elements:
“(1) The act occurred on or about * * * August 13, 2019;
“(2) [Defendant] knowingly subjected [C] to sexual
contact;
“(3) [Defendant] knowingly subjected [C] to forcible
compulsion.”
(Bold and uppercase in original.)
The jury was additionally provided with the following definitions of forcible compulsion and “knowingly and
with knowledge”:
“Forcible compulsion—to compel by either (a) physical force or (b) a threat, express or implied, that places
a person in fear of immediate or future death or physical
injury to self or another person.”
“* * * * *
“KNOWINGLY AND WITH KNOWLEDGE
“A person acts ‘knowingly’ or ‘with knowledge’ if that
person acts with an awareness that his conduct is of a particular nature.
“In counts 1 through 5 when used in the phrase ‘knowingly engaged in sexual intercourse with [N]’, ‘knowingly’
means that the defendant acts with an awareness that he
engaged in sexual intercourse with [N]. When used in the
phrase ‘knowingly subjected [N] to forcible compulsion,’
knowingly means that the defendant acts with awareness
that he subjected [N] to forcible compulsion when he subjected her to sexual intercourse.
“* * * * *
“In counts 7 through 9 when used in the phrase ‘knowingly subjected [C] to sexual conduct by touching her vaginal area, mouth, genital area, a sexual or intimate part
of [C],’ ‘knowingly’ means that the defendant acts with
an awareness that he touched [C’s] vaginal area, mouth,
or genital area, and that those body parts are sexual or
intimate parts of [C’s] body. When used in the phrase
‘knowingly subjected [C] to forcible compulsion,’ knowingly
282 State v. Cortez-Orta
means that the defendant acts with awareness that he subjected [C] to forcible compulsion when he subjected her to
sexual contact.”
(Bold and uppercase in original; brackets omitted.)
As noted earlier, defendant challenges his convictions for three counts of first-degree rape and one count of first-degree sexual abuse.2 On appeal, defendant asserts
that the trial court erred by omitting from the jury instructions a direction that the jury must find a causal connection between the use of force and the sexual contact, and therefore argues that the jury instructions were incomplete for
omitting a necessary element of the crimes. He maintains
that he preserved that argument, but in the alternative,
requests plain error review. The state asserts that defendant failed to preserve the argument below, and that any
error was not plain or was harmless under the particular
facts of this case.
PRESERVATION
We start with preservation and conclude that defendant did not preserve the argument he now urges on appeal.
In general, “a party must provide the trial court with an
explanation of [their] objection that is specific enough to
ensure that the court can identify its alleged error with
enough clarity to permit it to consider and correct the error immediately, if correction is warranted.” State v. Wyatt, 331 Or 335, 343, 15 P3d 22 (2000).
At the close of evidence, and prior to closing arguments, the court engaged in a lengthy discussion with the
parties regarding the jury instructions. Due to the volume of charges and the various theories relating to different counts, the court felt it necessary to clarify how the phrase “knowingly and with knowledge” was used in relation to each element of
each count. The court decided to put a proposal together and get it to the parties that evening before reconvening in the
2
Defendant was also convicted of an additional count of first-degree rape (Count 6) and found guilty of 30 counts of third-degree sexual abuse (Counts 10-39). The court merged a number of the sexual abuse counts, and defendant does not assign error to any of those convictions. The jury additionally acquitted him of two other counts of first-degree rape (Counts 4 and 5) and two other counts of first-degree sexual abuse (Counts 7 and 9).
Cite as 352 Or App 278 (2026) 283
morning to discuss any further changes that needed to be
made. As part of that discussion, the court was looking at
how “knowingly” was defined in relation to the forcible compulsion element, and the following exchange occurred:
“[DEFENSE COUNSEL]: I do think—if I can just jump
in for a second—
“THE COURT: Mm-hmm (affirmative).
“[DEFENSE COUNSEL]: The forcible compulsion language, I think it should mention that the forcible compulsion was to further the sexual contact.
“THE COURT: Well, in the forcible compulsion definition—well, okay, we’re not quite there yet but let me—
“[DEFENSE COUNSEL]: Okay. That might solve the
problem then.
“THE COURT: All right. Well, let’s—all right. Let’s
just move to definitions. So forcible compulsion, to compel—
so to compel a person to engage in sexual intercourse by
either physical threat or—or physical force or a threat—
“[PROSECUTOR]: I don’t think that’s—
“THE COURT: Is that what you’re asking for?
“[DEFENSE COUNSEL]: I—I am. I don’t think we
need to put in a threat. It would confuse the jury since
there’s no allegations of threatening behavior. There’s allegations of threatening behavior for disclosing, but all the
allegations were simply the use of force.”
The conversation turned to whether the definition
of forcible compulsion should include the various statutory
definitions of how it could be completed, and whether a theory of forcible compulsion via threats applied in the case.
The discussion never returned to whether the instructions
needed to include a causation element between the forcible
compulsion and the sexual acts. Defendant had no objection to the instructions for the rape or sexual abuse counts, and agreed that they looked correct as drafted. The following morning, defendant agreed that the court’s proposed
changes to the definition of “knowing and with knowledge”
were fine. There were no further objections to any of the jury instructions.
284 State v. Cortez-Orta
On appeal, defendant asserts that the instructions
for both first-degree rape and first-degree sexual abuse
were incomplete because they did not include an instruction
regarding the causal connection between forcible compulsion and the sexual act. He asserts that counsel’s comment
to the trial court that “the forcible compulsion language, I think it should mention that the forcible compulsion was to
further the sexual contact” was sufficient to preserve the
issue for appeal. We disagree with defendant’s preservation
argument.
Although defendant did raise the issue of the link
between forcible compulsion and the sexual contact, he did
not object to the presentation of the elements of the crimes at issue, did not propose any particular changes to the definition of forcible compulsion apart from the debate over
whether to include threats or not, and had no objection to
the court’s expansive explanation of what “knowing or with
knowledge” meant in relation to each of the elements of the
crimes. When given the opportunity to raise any additional
problems with the instructions, both at the end of the discussion one day and in the morning the following day, defendant did not raise the issue he now urges on appeal. Accordingly, we conclude that defendant’s argument is unpreserved, and
therefore turn to whether we review for plain error.
PLAIN ERROR
“Generally, an issue not preserved in the trial
court will not be considered on appeal.” Wyatt, 331 Or at
341. However, we have discretion to correct a “plain” error. ORAP 5.45(1). An error is “plain” when it is an error of law, the legal point is obvious and not reasonably in dispute, and the error is apparent on the record without our having to
choose among competing inferences. State v. Vanornum, 354
Or 614, 629, 317 P3d 889 (2013). Whether an error is “plain” is a question of law. State v. Gornick, 340 Or 160, 167, 130 P3d 780 (2006). If we conclude that a plain error occurred,
the next question is whether it was harmless, as we cannot
reverse a judgment based on harmless error. State v. Ortiz,
372 Or 658, 671, 554 P3d 796 (2024) (“Under Article VII
(Amended), section 3, of the Oregon Constitution, an appellate court may not reverse a criminal defendant’s conviction Cite as 352 Or App 278 (2026) 285
based on an error—whether preserved or unpreserved—
that is harmless.”). An error was harmless if there is “little likelihood” that it affected the verdict. State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003). Finally, if an error is both plain and not harmless, we must decide whether to exercise our
discretion to correct it. Ortiz, 372 Or at 672.
Assuming without deciding that what occurred
here was plain error, we conclude that this is not a case in which we would exercise our discretion to correct the error.3 The Supreme Court has identified a nonexclusive list of
factors that may be relevant in deciding whether to exercise our discretion to correct a plain error: “the competing interests of the parties; the nature of the case; the gravity of the error; the ends of justice in the particular case; how the error came to the court’s attention; and whether the policies behind the general rule requiring preservation of error have been served.” Ailes v. Portland Meadows, Inc., 312 Or
376, 382 n 6, 823 P2d 956 (1991). Those factors are not a
complete or necessary checklist; however, they are some of
the permissible considerations. Id. In deciding whether to
exercise discretion to remedy an instructional error, we may also consider whether the parties agreed to a particular jury instruction or possibly made strategic choices not to object. State v. Wiltse, 373 Or 1, 18, 559 P3d 380 (2024).
3
In Marshall, the Supreme Court noted the causal connection between forcible compulsion and the sexual contact that comprised the charge, and that the state must prove that the forcible compulsion compelled the victim to submit to or engage in the contact. 350 Or at 227. Additionally, prior to the trial in this matter, the Uniform Criminal Jury Instructions (UCrJI) for both first-degree rape and first-degree sexual abuse were amended to clarify that the state must prove that the defendant subjected the victim to forcible compulsion “and that forcible compulsion resulted in” the sex act in question. See UCrJI 1603 (Rape in the First Degree); UCrJI 1611 (Sexual Abuse in the First Degree). For unknown reasons, the trial court in this case used the outdated version of the UCrJIs that did not include the final clause.
In a recent nonprecedential memorandum disposition, we concluded that jury instructions that omitted the causal connection between forcible compulsion and the sexual conduct at issue were erroneous, and we reversed and remanded the defendant’s convictions. State v. Sanchez, 337 Or App 797 (2025) (nonprecedential memorandum disposition). That opinion, of course, is not binding given its nonprecedential nature. Additionally, there is no indication that Sanchez involved preservation issues, and therefore was not reviewed in a plain error posture. Finally, other factual differences make Sanchez readily distinguishable from this matter, regardless of Sanchez being nonprecedential.
286 State v. Cortez-Orta
Here, although out-of-date uniform instructions
were being used, defendant did not object to the final set
of jury instructions, and he did not raise an objection to
the instructions regarding the elements of first-degree
rape or first-degree sexual abuse as proposed by the court.
Additionally, causation between the use of forcible compulsion and the sex acts in question was not an issue that
was actively disputed at trial. Defendant maintained that
he never touched the girls sexually and argued that N and
C were not credible in their reports of abuse. See id. at 23 (concluding that the gravity of the error weighed against
reversal when the erroneous jury instruction related to an
issue that the defendant did not actively dispute at trial). No argument was raised that, if the acts occurred, they were
not completed via physical force, or that any physical force exerted did not compel the victims to submit to the acts.
Finally, in discussing the causal relationship between a sexual act and forcible compulsion in Marshall, the Supreme
Court noted that the only logical reading of the term forcible compulsion was that what was “compelled” was the physical
contact that was the other element of the crime. Marshall,
350 Or 217-18 (“The question then is: compelled by physical force to do what? Given the wording of the statute, the
only possible answer to the question of what is compelled
is: to submit to or engage in the physical contact that is the other element of the crime * * *.” (Brackets, quotation marks, footnote, and ellipses omitted.)). In the context of the elements of the crimes at issue here and the definition of what “knowing” meant in relation to each of those elements, we
conclude that it is highly unlikely that the jury would not
make the same linguistic connection that was identified by
the Supreme Court, that what was forcibly compelled was
the sex act at the center of each charge. Because we conclude that it is unlikely that an additional instruction on the causal relationship between the acts and the forcible compulsion would have made a difference in the jury’s verdict,
we conclude that any error was not grave, and therefore we
do not exercise our discretion to correct any error.
Affirmed.