No. 779 August 19, 2026 269
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JESUS RAMIRO SOTO,
Defendant-Appellant.
Umatilla County Circuit Court
19CR70547; A184880
Daniel J. Hill, Judge.
Argued and submitted March 4, 2026.
Rond Chananudech, 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.
Lauren P. Robertson, Assistant Attorney General, argued
the cause for respondent. On the brief were Dan Rayfield,
Attorney General, and Benjamin Gutman, Interim Deputy
Attorney General, and Shannon T. Reel, Assistant Attorney
General.
Before Shorr, Presiding Judge, Powers, Judge, and
Hellman, Judge.
SHORR, P. J.
Conviction on Count 1 reversed and remanded for entry of
a conviction for sexual abuse in the second degree; remanded
for resentencing; otherwise affirmed.
270 State v. Soto
SHORR, P. J.
Defendant appeals a judgment of conviction for
one count of first-degree unlawful sexual penetration, ORS
163.411 (Count 1).1 The charge related to an incident in
which defendant digitally penetrated the vagina of his girlfriend, R, against her will. In his sole assignment of error, defendant asserts that the trial court erred by denying his
motion for a judgment of acquittal (MJOA) on the unlawful
sexual penetration count because the evidence was legally
insufficient to prove the forcible compulsion element of that crime. As explained below, we conclude that the evidence
was legally insufficient to find the forcible compulsion element beyond a reasonable doubt, and we therefore reverse
defendant’s conviction and remand for entry of a conviction
for sexual abuse in the second degree.
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 R had been a couple for eight or
nine years and had three children together. They all lived
together in a home, along with defendant’s sister and her
teenaged son. Defendant had a history of substance abuse.
R testified that when defendant is using drugs, he turns
into a different person: he is meaner, jealous, gets mad, and accuses her of things, including infidelity. She denied that
he becomes scary.2
The precise timing of the series of events that led
to the charges in this case was not made explicit during
testimony, but the following sequence of events is undisputed. Defendant was using drugs and had gotten ahold of
1
Defendant was also convicted of one count of felon in possession of a firearm, ORS 166.270(1) (Count 2), and one count of menacing constituting domestic violence, ORS 163.190 (Count 3). He was acquitted of an additional count of menacing (Count 4). He only assigns error to the first-degree unlawful sexual penetration count.
2
R was a reluctant witness, and only appeared due to a subpoena. She admitted that she did not want to call the police on the day in question, did not want to testify to the grand jury, and did not want to be in court at the trial. Cite as 352 Or App 269 (2026) 271
R’s handgun. At some point during the day on October 25,
he threatened to shoot everyone in the house. One of the
arresting officers later recounted that defendant admitted
to getting mad and having blown up after R allegedly told
him he was not the father of their children. R testified that she was a little bit scared during that interaction, but not
really scared by the threat.
Later that night, around midnight on the 26th,
defendant returned to the home to pack his belongings and
said that he was moving out. While he was packing, defendant forced R to touch his penis. No details were elicited
about the circumstances of that act, and no charges resulted
from it. He also put his hand down the front of R’s pants
while she was laying on the bed, digitally penetrated her
vagina, and then sniffed his finger and made her smell it as
well, thinking he could tell whether R had cheated on him
based on the smell. R testified that she told him no, and did not want him to do that, because their children were asleep
in the bed next to her and she did not want them to see. She
said it hurt a little bit when he penetrated her, but that he was gentle. For that act, defendant was charged with firstdegree unlawful sexual penetration.
During the day on the 26th, defendant’s sister
convinced R to call the police, and an officer arrived that
afternoon. At trial, the state played a short segment of the
officer’s bodycam footage during which R briefly relayed the
fact of defendant digitally penetrating her. The officer also took photographs of a series of text messages defendant had
sent to R that day, accusing her of cheating on him.
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 Forcible compulsion means
“to compel by:
“(a) Physical force; or
3
As used in that statute, “object” includes any body part of the actor. ORS 163.411(3).
272 State v. Soto
“(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, or
in fear that the person or another person will
immediately or in the future be kidnapped.”
ORS 163.305(1).
Defendant contends that the evidence was legally
insufficient to prove that he subjected R to forcible compulsion, either via physical force or threats. He raised the same issue in his MJOA before the trial court, so the claim of
error is preserved. The state maintains that the trial court
properly denied the MJOA.
On review of the denial of an MJOA, our task is to
“determine whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could
have found the essential element of the crime beyond a reasonable doubt.” State v. Cunningham, 320 Or 47, 63, 880 P2d
431 (1994), cert den, 514 US 1005 (1995). To the extent inferences from circumstantial evidence are necessary to prove
an element, it is a question of law what reasonable inferences may be made from the evidence. State v. Bivins, 191
Or App 460, 467, 83 P3d 379 (2004). Reasonable inferences
are allowed, but “speculation and guesswork are not.” Id.
Applying that standard of review, we agree with defendant
that the evidence elicited at trial was legally insufficient to support the conviction, because the evidence does not support a reasonable inference that defendant subjected R to
forcible compulsion, either through physical force or through threats.
We begin with physical force. In order to meet the
forcible compulsion element, 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.” State v. Marshall, 350 Or 208, 221, 253 P3d 1017
(2011). In Marshall, the Supreme Court concluded that the
record established forcible compulsion for the defendant’s act of using his own hands to force the victim’s hands into the
defendant’s pants to touch his penis. Id. at 227-28. However, Cite as 352 Or App 269 (2026) 273
the court concluded that the fact that the defendant had
slipped his hand down the victim’s sweatpants to touch her
buttocks did not involve any greater or different force than
was inherent in that particular sexual contact and therefore
did not constitute forcible compulsion. Id. at 228.
We see no distinction between the case at hand and
the second act at issue in Marshall. The record established
only that defendant put his hand inside of R’s pants and
digitally penetrated her vagina. While R testified that the
penetration hurt a little bit, she did not testify to any physical acts that were greater or qualitatively different from the actual act of touching her intimate parts. The most that can
be inferred from the testimony is that defendant would have
had to move R’s pants in some way in order to get his hand
inside of them. Such an act was insufficient to prove forcible compulsion in Marshall, and we reach the same conclusion
here.
The state argues that the context of defendant having previously forced R to touch his penis and then forcibly
putting his hand down the front of her close-fitting pants
demonstrates that he used force that is not inherent in digital penetration. However, the record contains no information
regarding the circumstances of defendant forcing R to touch
his penis, including how close in time it occurred to the digital penetration. Additionally, as was the case in Marshall,
there was no evidence of any causal connection between the
two acts. See id. at 227 (“[T]he state must prove not only
that the defendant subjected the victim to an act of forcible compulsion, but also that that act 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.”); see also State v. Beckner, 303 Or App 744, 757-58, 466 P3d 1000,
rev den, 366 Or 826 (2020) (“Here, the evidence was insufficient to establish that the victim felt compelled to submit to the grabbing of her breasts because [the] defendant grabbed
her hips.” (Emphasis in original.)). The record contains no
evidence that the vaginal penetration was accomplished or
that R was compelled to submit to it because of any other
physical force exerted by defendant, whether the forcible
touching of his penis or the moving of her pants. Therefore
274 State v. Soto
the record is insufficient to establish forcible compulsion by physical force.4
We turn now to whether the record is sufficient to
establish forcible compulsion by threats, whether express or
implied. As noted above, forcible compulsion includes compelling by “a threat, express or implied, that places a person in fear of immediate or future death or physical injury to
self or another person, or in fear that the person or another person will immediately or in the future be kidnapped.” ORS
163.305(1)(b). “To prove that a defendant used forcible compulsion by way of express or implied threats, ‘there must be
some kind of communication by the defendant to the victim
of intent to inflict harm.’ ” State v. Kawamoto, 273 Or App
241, 253, 359 P3d 305 (2015) (quoting State v. Magel, 246 Or
App 725, 730, 268 P3d 666 (2011)). As with physical force,
there must be some causal connection between the threats
and the victim’s submission to the act: “forcible compulsion
by threat requires the perpetrator to say or do something
that places the victim in fear that she or someone else will
be killed, physically injured, or kidnapped unless she submits to or engages in the sexual contact.” Beckner, 303 Or
App at 749-50 (emphasis omitted).
The state asserts that such threats may be inferred
from the course of defendant’s actions throughout the day,
including his earlier threats to shoot everyone in the house, accusing R of cheating on him, forcing her to touch his penis, and putting his hand down her pants against her will in the
presence of the children. The state argues that, by subjecting her to unwanted sexual contact, defendant impliedly threatened that continued resistance would result in physical injury. We acknowledge that the circumstances here were very troubling. It is reasonable to assume that any person in such
circumstances may feel unable to stop or resist unwanted
contact and could feel that to do so would be dangerous,
4
For comparison, see our opinion, also issued today, in State v. Cano-Magin, 352 Or App 259, ___ P3d ___ (Aug 19, 2026), in which we conclude that the record was sufficient to establish forcible compulsion by physical force when the record included evidence that the defendant used his body to restrain the victim by getting onto her seat in a vehicle, repeatedly reached over her to close the vehicle door to prevent escape, reclined her seat to place her in a more vulnerable horizontal position, and undid her pants against her will.
Cite as 352 Or App 269 (2026) 275
particularly in light of defendant having earlier gotten ahold of R’s gun and the children being present.5 Defendant’s other actions before and after the act were also incredibly disturbing, including forcing R to smell his finger, threatening to
kill himself,6 having surveillance cameras in their home to
watch her, and sending aggressive and accusatory text messages, all of which demonstrate at a minimum the controlling
dynamics at play in the relationship. However, we conclude
that the evidence that was actually presented at trial was
insufficient to support a conclusion that defendant completed the unwanted touching by forcibly compelling R via threats
that placed her in fear of immediate or future death or physical injury to herself or another person.
R did not testify about any of the context of defendant’s earlier threats to kill his family members, or to any
connection between that earlier behavior and the later
unwanted touching. R specifically testified that she was
only a little bit afraid of defendant’s threats earlier in the day, and that he generally did not become “scary” when
he was using drugs. She also maintained that defendant
was “kind of gentle” when he penetrated her, and she did
not acknowledge any fear she had of him at that time, or
any fear of death or injury that compelled her to submit to
his acts. We acknowledge that a factfinder does not have
to believe a victim’s assertions regarding their motivations
and experiences, and may base its decision on the circumstances surrounding what otherwise may be cast as a consensual or voluntary encounter. See State v. Jimenez, 247 Or
App 738, 270 P3d 405, rev den, 352 Or 33 (2012) (concluding
that a prolonged episode of assault ultimately resulting in
the victim consenting to intercourse could reasonably be
interpreted as forcible compulsion). However, in the matter at hand, the record contains such sparse information
regarding the circumstances of defendant’s earlier threats,
R’s reaction to them, and the details surrounding the events
that resulted in the unwanted penetration that a conclusion
5
There was no testimony regarding whether defendant still had the gun by the time of the unwanted touching.
6
The record is unclear as to whether defendant threatened to kill himself before or after the unwanted touching. In any event, the state did not rely on defendant’s threats to harm himself as evidence of forcible compulsion by threats. 276 State v. Soto
that R submitted to the contact because of defendant’s
implied threats is too great an inferential leap. See Beckner, 303 Or App at 750 (concluding that the defendant’s unsettling actions that were perceived as threatening and would
reasonably cause a person to feel fear and trepidation were
insufficient to prove forcible compulsion by threat, as the
statute “requires the defendant to have made an express or
implied threat of immediate or future death, physical injury, or kidnapping” unless the victim submits to the unwanted
contact); see also Bivins, 191 Or App at 467-68 (The line
between speculation and reasonable inference is “sometimes
faint” and may be “difficult to articulate with precision,” but “we have held evidence insufficient to support an inference
when the conclusion to be drawn from it requires too great
an inferential leap.” (Internal quotation marks omitted.)).
Because the record was insufficient to support a
finding that defendant subjected R to forcible compulsion,
the trial court erred in denying his MJOA on the firstdegree unlawful sexual penetration charge. However, that
is not to say that defendant’s actions were not criminal—
just that there is a difference between nonconsensual and
forcibly compelled contact. In State v. Lockhart, 319 Or App
89, 110, 508 P3d 526 (James, J., dissenting), rev den, 370
Or 214 (2022), Judge James noted, “What is key is that just
because sexual conduct is nonconsensual does not mean that
it has occurred by ‘forcible compulsion.’ Rather, forcible compulsion represents a legislative choice to impose a greater
punishment when a defendant goes beyond subjecting the
victim to nonconsensual sexual intercourse or sexual contact.” (Internal quotation marks omitted.)
A person commits the crime of sexual abuse in the
second degree when the person “subjects another person
to * * * penetration of the vagina * * * with any object other than the penis or mouth of the actor and the victim does
not consent thereto[.]”). ORS 163.425(1)(a). Sexual abuse in
the second degree is a lesser-included offense of first-degree unlawful sexual penetration. State v. Parra-Sanchez, 324
Or App 712, 739, 527 P3d 1008, rev den, 371 Or 333 (2023)
The court necessarily found that R did not consent to the
penetration of her vagina, which defendant does not contest.
Cite as 352 Or App 269 (2026) 277
Defendant thus committed sexual abuse in the second
degree. We therefore reverse the conviction for first-degree
unlawful sexual penetration, and remand for entry of a conviction for sexual abuse in the second degree.
Conviction on Count 1 reversed and remanded for
entry of a conviction for sexual abuse in the second degree;
remanded for resentencing; otherwise affirmed.