No. 72 February 7, 2024 545

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

JOSHUA TERRELL GREEN McCOMBS,

Defendant-Appellant.

Klamath County Circuit Court

16CR01356; A175889

Andrea M. Janney, Judge.

Submitted April 24, 2023.

Ernest G. Lannet, Chief Defender, Criminal Appellate 

Section, and Stephanie J. Hortsch, Deputy Public Defender, 

Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Michael A. Casper, Assistant Attorney 

General, filed the brief for respondent.

Before Ortega, Presiding Judge, Powers, Judge, and 

Hellman, Judge.

ORTEGA, P. J.

Conviction on Count 3 reversed; remanded for resentencing; otherwise affirmed.
546 State v. McCoombs
Cite as 330 Or App 545 (2024) 547

ORTEGA, P. J.

Defendant appeals his conviction by a jury for firstdegree rape, ORS 163.375(1)(b) (Count 1); first-degree sodomy, ORS 163.405(1)(b) (Count 2); and first-degree sexual 

penetration, ORS 163.411(1)(b) (Count 3). He assigns six 

errors, challenging the denial of his motion for a judgment 

of acquittal (MJOA) on Counts 1 and 3, the denial of his 

motion to suppress his statements confessing to the conduct 

underlying those convictions, and the imposition of 300-

month prison sentences and 100-year post-prison supervision (PPS) terms on each of the three counts.1

 We conclude 

that the evidence supported the denial of his MJOA as to 

Count 1, that his inculpatory statements were correctly 

admitted, and that his sentence on Counts 1 and 2 were 

not constitutionally disproportionate. However, we conclude 

that the trial court erred in denying defendant’s MJOA 

on Count 3, because the evidence was legally insufficient 

to corroborate his inculpatory statements that supported 

the sexual penetration conviction. Accordingly, we reverse 

defendant’s conviction on Count 3; otherwise, we affirm the 

court’s judgment.

We begin by providing the principal facts on which 

we base our decision and provide additional relevant facts 

as we address each issue. Detective Ferns interviewed 

defendant in connection to allegations that defendant had 

sexually abused his four-year-old stepdaughter, H, after H 

told her mother, “[D]addy hurt [my] butt with his wee-wee.”2

Defendant initially denied that he had touched H inappropriately. Ferns told defendant,”[I]f something did happen 

between you and your daughter, I’m going downstairs and 

you’re leaving this room”; “I will not arrest you”; “[T]he truth 

always comes out”; and “If people lie to me ***, I paint them 

out to be liars in my report.” Defendant stated, “I did not 

1 The trial court’s judgment indicates that each of defendant’s sentences 

included a PPS term of “100 year(s).” The text of the applicable statute, ORS 

144.103(2), however, indicates that the PPS term shall be “for the rest of the 

person’s life.” Defendant points out that error, but he expressly concedes that the 

error was harmless, and we agree. We, thus, review defendant’s challenge to his 

PPS terms, as he presents it, as a challenge to the imposition of a lifetime PPS 

term against him.

2 H was about two months old when defendant and H’s mother began their 

relationship, and H referred to defendant as “daddy.”
548 State v. McCoombs

touch her with my penis”; “I might have rubbed harshly 

when I was cleaning, but the poop wouldn’t come off.” In 

response to whether his finger “entered the cavity of [H]’s 

anus,” defendant replied, “[M]y finger might have entered 

[H] *** once.” Defendant explained that he was helping H 

with a bath, that “the soap was really slippery” and “it just 

happened,” and that he made a mistake. Ferns replied, “I 

can tell on your face it was intentional” and “If this is true, 

*** let’s ** * get you some help on it.” Defendant continued 

to deny that he acted intentionally.

As the interview proceeded, Ferns said, “I think 

you stuck your finger in your daughter’s ass on purpose,” 

and defendant relented, stating, “I did, sir.” He explained 

that he put his “middle finger *** [a]ll the way” up H’s anus 

for “[m]aybe two [or] three minutes,” on purpose, more than 

once, but no “more than five times.” Moreover, defendant 

stated that he “put” his penis in H’s anus “[n]ot all the way.” 

He explained, “I put it in, and then she started screaming 

really bad. I pulled it out and instantly left the [bath]room.” 

Defendant further explained that he used baby oil as a lubricant and that he did not use a condom. Ferns asked defendant to write an apology letter, describing “in detail what 

[defendant] did” to H, and defendant did so. After defendant wrote the apology letter, Ferns told defendant (falsely), 

“Your daughter had a tear on her vagina. What’s going on 

about that?” Defendant replied, “I never tried to insert it 

into there. * ** I pushed it there, but I couldn’t.” Defendant 

also stated that he did not know how far his penis went into 

H’s vagina and that “[m]aybe” it was “an inch, if that.” At the 

end of the interview, defendant stated, “I’m not glad that I 

did it”; “I’m glad that I told you the truth”; “There’s no help 

for this”; and “Tell [H] I’m sorry.”

The state indicted defendant with first-degree 

rape, ORS 163.375(1)(b) (Count 1), alleging that defendant 

“engage[d] in sexual intercourse” with H; first-degree sodomy, ORS 163.405(1)(b) (Count 2), alleging that defendant 

“engage[d] in deviate sexual intercourse” with H; and firstdegree sexual penetration, ORS 163.411(1)(b) (Count 3), 
Cite as 330 Or App 545 (2024) 549

alleging that defendant “penetrate[d]” H’s anus with defendant’s finger.3

Before trial, defendant moved to suppress his statements to Ferns, arguing that they were not voluntary and 

were, rather, coerced. He explained that he suffered from 

post-traumatic stress disorder (PTSD) and argued that 

Ferns misled him during the interview as to injuries to H’s 

genitals and by promising to help him and informing him 

that he would not be arrested if he admitted the alleged conduct. Two expert witnesses—clinical psychologist Dr. Calvo 

and neuropsychologist Dr. Stanulis—testified for defendant, 

opining that defendant’s undisputed PTSD put him at risk 

of making false and involuntary statements. Ferns testified 

that, having interviewed “several hundred” people, he had 

noticed nothing “out of the ordinary mentally going on with” 

defendant, including no changes in defendant’s demeanor. 

The trial court denied defendant’s motion in a detailed opinion letter that found, based on Ferns’s testimony during the 

suppression hearing and the recording of Ferns’s interview 

with defendant, that defendant made his statements during 

the interview voluntarily. As the court explained,

“[D]efendant has a valid PTSD diagnosis [and] there 

may be circumstances or instances when an otherwise 

benign interrogation or interview could become coercive 

due to an individual’s acute PTSD reaction.

“[Here,] [h]owever, there is no evidence that * ** defendant was exhibiting any signs of severe anxiety or distress 

that would have been out of the ordinary for this situation. 

* * * Ferns testified that ** * defendant was behaving in 

ways that were consistent with many defendants he had 

interviewed before. [Ferns] did not notice any physiological 

responses in *** defendant that alerted him to any significant issues.”

The court further found that Calvo and Stanulis, 

the two expert witnesses who testified to the opinion that 

3 “A person who has sexual intercourse with another person [who is under 12 

years of age] commits” first-degree rape. ORS 163.375. “A person who engages in 

oral or anal sexual intercourse with another person [who is under 12 years of age] 

commits” first-degree sodomy. ORS 163.405. “[A] person [who] penetrates the 

vagina [or] anus” of another person who is under 12 years of age “with any object” 

commits the crime of first-degree unlawful sexual penetration. ORS 163.411.
550 State v. McCoombs

defendant suffered from PTSD and involuntarily confessed, 

were neither credible nor persuasive. The court explained:

“The court *** acknowledges the very real phenomena of false confessions. * ** Dr. Calvo[] testified that he 

believed [defendant’s] confession to be false because * ** 

defendant suffers from guilt due to actions in combat. 

Specifically, Dr. Calvo testified that ** * defendant was 

likely confessing to this charged crime out of guilt for having shot a child during the war. There is absolutely no evidence on the record to suggest this is anything other than 

pure speculation. Dr. Calvo frequently contradicted himself 

and had to be routinely redirected by counsel. For example, Dr. Calvo testified that it is very common for veterans 

with PTSD to exhibit a mistrust and disdain for authority. 

[D]efendant *** was respectful and compliant with authority. When carefully redirected by defense counsel, Dr. Calvo 

testified that *** defendant’s deference to authority during 

the interview could certainly be a ‘result’ of PTSD. Overall, 

the court did not find Dr. Calvo’s testimony to be credible.

“Further, Dr. Stanulis’[s] opinion is not persuasive. 

His report reads as little more than a cursory critique of 

the interview, while citing wholly unreliable sources. His 

testimony was also contradictory. When confronted with 

conflicting information or difficult questions, he became 

evasive and non-responsive. Neither expert could identify 

behaviors or actions by *** defendant during the interview 

that could be identified as symptoms of PTSD. Dr. Calvo 

cited * ** defendant’s politeness as evidence of PTSD, while 

Dr. Stanulis mentioned that * ** defendant almost vomited 

and was compliant. When pushed, neither witness could 

articulate why *** defendant’s PTSD made this confession involuntary. Dr. Stanulis relied heavily on his belief 

that the interview itself was coercive and that [defendant] 

would be especially vulnerable to that type of interview. 

Overall, the testimony of Dr. Stanulis was not particularly 

credible or compelling.”

Moreover, the court found that defendant “willingly 

went to the police station to be interviewed”; that he “was 

advised of his Miranda rights and signed an acknowledgement that he understood those rights”; that “[t]here [wa]s 

no evidence on the record that he did not understand his 

Miranda rights, or that his PTSD rendered him unable to 

understand his rights” and “no indication of confusion on 
Cite as 330 Or App 545 (2024) 551

behalf of * ** defendant.” The court further found that the 

interview was a “one-on-one interview that lasted less than 

one hour,” that it “occurred in the middle of the day,” and 

that “defendant was never threatened, restrained, or told he 

could not leave.”

Regarding Ferns’s statement, “I’ll go upstairs,4

and you’ll go home,” the court, based on State v. VasquezSantiago, 301 Or App 90, 456 P3d 270 (2019),5

 explained:

“Th[at] [statement] triggers an inquiry about whether 

inducement overborne the defendant’s free will. [However,] 

[h]ere, there were no promises that a confession could 

secure a benefit or avoid a harm. [Defendant] was encouraged to tell the truth. * ** Unlike Vasquez-Santiago, there 

were no direct or implied promises regarding the state’s 

action towards the defendant. * ** Ferns did not promise or threaten the defendant in any way ***. Ferns did 

not promise or threaten any leniency or harsh treatment. 

[D]efendant specifically asked * ** Ferns what was going to 

happen, and *** Ferns replied, ‘I don’t know.’ At one-point 

*** Ferns did push defendant to tell the truth and told 

[defendant] he believed [defendant] was only being ‘partially truthful.’ * ** Ferns admitted to lying to [defendant] 

about an injury to [H]. Lying to a defendant is not prohibited. The deception in this case was not ‘beyond that pale’ 

as defense counsel argues.”

The court continued:

“Further, the defendant did not confess to every act he 

was questioned about. [Defendant] confessed to only certain acts, even when pressed by [Ferns] regarding other 

victims, locations, and facts. [D]efendant corrected [Ferns] 

on more than one occasion about the nature of his conduct, 

of where the incident occurred. While alone, [defendant] 

wrote his confession which matched his verbal statement. 

4 At the interview with defendant, Ferns used the word “downstairs” but, 

when testifying, he used the word “upstairs.” The court appears to be referring to 

Ferns’s testimony. That word variation does not affect our analysis as it is clear 

in the record that Ferns was referring to the same place both times.

5 In Vasquez-Santiago, the defendant’s confession was held to be involuntary because the detectives secured that confession by making the defendant 

“believe[] that his infant was separated from the child’s nursing mother and was 

being detained by police,” by “repeatedly” telling him “that his family was suffering” and “that his confession to murder was the key to securing [his] family 

members’ release and ending that suffering.” 301 Or App at 118.
552 State v. McCoombs

[Defendant] repeatedly apologized for his behavior and 

expressed relief in telling the truth. *** The court does 

take *** defendant’s diagnosis and level of disability into 

consideration under the totality of the circumstances * ** 

[and] finds that [defendant] was not overcome by his disability to the point of involuntarily confessing. [Defendant] 

was not induced to confess through fear or promises, direct 

or implied.

“The motion [to suppress] is denied.”

At defendant’s trial, the state played the audio 

recording of defendant’s interview with Ferns and introduced, among other evidence, defendant’s apology letter to 

the jury. Ferns and several other witnesses testified for the 

state, including H’s mother, H, and other individuals who 

corroborated that H had asserted that “[defendant] hurt 

[her] butt with his pee-pee.” In addition to testifying to H’s 

statement, H’s mother confirmed that there was baby oil in 

their house—in reference to defendant’s statement that he 

used baby oil as a lubricant.

Child Abuse Response and Evaluation Services 

(CARES) medical director, Laneah Snyder, who evaluated 

H, performed a head-to-toe examination of H, and participated in H’s forensic interview, testified that when she asked 

H about her vaginal area, H replied that “Daddy made a 

mark with his wee-wee,” when H was in “[m]ommy’s room.” 

When asked about how many times “Daddy made a mark 

with his wee-wee,” H replied, “Hours.” According to Snyder, 

that response reflected the time concepts of a four-year-old 

child. Snyder testified that H’s video colposcopy showed “a 

little bit of redness” “in front of” H’s hymen, though she also 

acknowledged that “a bit of redness” can be “very normal” 

in a four-year-old. Snyder explained that “normal” is a common physical finding following child abuse.

Snyder further testified that in reply to questions 

about H’s anus area—including, “Has anybody ever made 

you do anything to their butt that’s made you feel weird or 

icky or not right?”—H replied, “Daddy did” and “He put his 

wee-wee in my butt”; when asked, “Where is his wee-wee?” 

H replied, “In his pants”; when asked about where that happened, H replied, “At the house,” in the “TV room and [in] 
Cite as 330 Or App 545 (2024) 553

mommy’s room one time.” Snyder testified that she found no 

additional physical findings and that H’s “anal exam was 

with the normal limits.” Asked whether she would “expect 

*** to see physical findings [from where] the defendant 

used his finger, put his penis in her rectum using baby 

oil one time,” Snyder replied, “never.” Specifically, Snyder 

explained, “[You] are even less likely to see anal findings in 

abuse than you are * * * in vaginal findings.”

CARES forensic interviewer, Andrea Mitchell, who 

interviewed H after Snyder’s examination and with Snyder, 

testified that H told Mitchell, “Daddy’s wee-wee hurt my 

butt.” Like Snyder, Mitchell testified that H said that the 

incident occurred “[i]n mommy’s room” and that “daddy’s 

wee-wee” was “[i]n his pants,” which H demonstrated that 

by “point[ing] to [H’s] front private.” Mitchell also testified 

that H said that “daddy” took H’s pants and underwear off 

when they were in the bathroom; when asked whether “daddy’s wee-wee ever hurt [H] anywhere else,” H replied, “No.” 

After a break in the interview, Mitchell asked H to draw a 

picture of defendant’s “wee-wee” and H drew a picture of an 

“awkward-shaped circle, kind of long with a point on it.” At 

that point, the state introduced H’s drawing into evidence. 

Mitchell also testified that, when asked to clarify where and 

how defendant’s conduct happened, H said that “she was in 

the room *** [o]n the bed” and that H demonstrated defendant’s position by “l[ying] facedown with her knees tucked 

under her stomach” and said, “Daddy was on my butt.” H 

confirmed to Mitchell that she told “the doctor last night” 

and told her “mommy” about “daddy’s wee-wee hurting her 

butt.” Mitchell confirmed that in her interview with H, H 

made no mention of whether defendant “put anything in 

[H’s] vagina” or whether “a finger [had] be[en] put in her 

butt.”

Ferns, who observed Snyder’s evaluation and 

Mitchell’s interview with H, testified that the next day, 

he contacted defendant to request an interview, and that 

he explained to defendant upon that contact that the 

interview concerned H, and defendant agreed to go to the 

Police Department to be interviewed. About seven minutes 

later, defendant arrived at the Police Department, Ferns 
554 State v. McCoombs

took defendant to the interview room, read defendant his 

Miranda rights, and interviewed him, as described above.

At the close of the state’s case, defendant moved 

for a judgment of acquittal on Count 1 (first-degree rape) 

and Count 3 (first-degree sexual penetration). He argued 

that there was “no corroboration of [his] statements,” that 

“[H] made no statements about either sexual [penetration], 

rape, or sodomy,” and that there was “no physical evidence” 

and “no evidence independent of [defendant’s] statement to 

support those things.” The state contended that there was 

enough evidence to go to the jury, explaining that H “made 

a number of statements about daddy hurting her butt” and 

that “she did make specific statements about daddy hurting her butt with his wee-wee * ** as well.” The state further contended that defendant “was alone with [H], had an 

opportunity to do this and then he confessed his crimes.” 

The court denied defendant’s MJOA, and the jury ultimately 

found defendant guilty on all three charges.

At defendant’s sentencing proceeding, the state recommended that the court sentence defendant on each count 

to a 300-month prison sentence pursuant to ORS 137.700 and 

a lifetime of post-prison supervision term pursuant to ORS 

144.103(2). The state further recommended that the sentence 

in Count 2 run consecutively to the sentence in Count 1 and 

the sentence in Count 3 run concurrently to the sentence in 

Count 2. Defendant renewed his MJOA and contended in his 

sentencing memorandum that, in light of his PTSD, those 

sentences were cruel and unusual, disproportionate, and violated his rights under Article I, section 16, of the Oregon 

Constitution, and the Eighth and Fourteenth Amendments 

to the United States Constitution. He argued that the applicable mandatory-minimum sentences under ORS 137.700 

were unconstitutional on their face and as applied to him.

The trial court again denied defendant’s MJOA and 

sentenced him according to the state’s recommendation. In 

doing that, the court explained:

“[T]he [c]ourt does not find that Jessica’s Law [codified 

as ORS 137.700] is unconstitutional as applied to [defendant]. Certainly, under these facts, [an ORS 137.700] sentence is not disproportionate.
Cite as 330 Or App 545 (2024) 555

“What shocks the moral compass or shook this [c]ourt 

and the public is the sodomy and rape of a four-year-old 

child. As put on in evidence in the trial, there may not have 

been physical injury, but as our witnesses testified to, that 

is rarely, if ever see[n], in these type[s] of cases, which I’m 

sure exist as the ongoing psychological trauma that is a life 

sentence for that child and her family.”

On appeal, defendant assigns six errors, one to the 

denial of his motion to suppress, two to the denial of his 

MJOA on Counts 1 and 3, and the remaining three assignments to his sentences on each of the three counts of which 

he was convicted.

We begin with defendant’s motion to suppress. He 

contends that his inculpatory statements were erroneously 

admitted in violation of ORS 136.425(1) and Article I, section 12, of the Oregon Constitution,6

 and that the error 

was not harmless. Defendant argues that the state failed 

to meet its burden to prove that his inculpatory statements 

were voluntary, and that Ferns induced him to confess by 

fear or promises. See State v. Powell, 352 Or 210, 225-26, 282 

P3d 845 (2012) (placing that burden on the state); see also 

State v. Jackson, 364 Or 1, 22, 430 P3d 1067 (2018) (requiring the state to prove that a “defendant’s free will was not 

overborne and his capacity for self-determination was not 

critically impaired, and that he made his statements without inducement from fear or promises”). In his view, Ferns’s 

statements during the interview communicated to him that 

he would not be arrested if he admitted to abusing H, that 

liars are the worst type of people, that Ferns would write 

a report painting defendant to be a liar if he did not admit 

abuse, and that Ferns would help defendant obtain psychological help if he did admit abuse. Particularly, he argues 

that, in light of the undisputed fact that he suffered from 

PTSD connected to his military service, which rendered 

6 ORS 136.425(1) provides that “[a] confession or admission of a defendant 

*** cannot be given in evidence against the defendant when it was made under 

the influence of fear produced by threats.” See also Vasquez-Santiago, 301 Or App 

at 105 (under Article I, section 12, confessions made by a defendant in custody 

that were induced by the influence of hope or fear, applied by law enforcement, 

are inadmissible against the defendant); State v. Jackson, 364 Or 1, 21, 430 P3d 

1067 (2018) (stating that an out-of-court confession is presumed to be involuntary); Lego v. Twomey, 404 US 477, 489, 92 S Ct 619, 30 L Ed 2d 618 (1972) (holding that the state must prove voluntariness by a preponderance of the evidence).
556 State v. McCoombs

him 100 percent disabled, the state failed to establish that 

his confession was the product of his free will and that his 

will was not overborne by the alleged inducements. We are 

not persuaded.

“[C]onfessions are initially deemed to be involuntary and ** * the state has the burden to overcome that 

presumption by offering evidence affirmatively establishing that the confession was voluntary,” which the state can 

prove by “a preponderance of the evidence.” Jackson, 364 Or 

at 21. In determining whether a confession was voluntary, 

rather than coerced, “[c]ourts look to the totality of circumstances,” including but not limited to “the crucial element of 

police coercion; the length of the interrogation; its location; 

its continuity; the defendant’s * * * physical condition; and 

mental health.” Id. at 28. In making that assessment, it is 

“helpful to begin with the issue of whether the officers who 

interrogated [the] defendant induced him to make admissions by the influence of hope or fear.” Id. at 22. “The ultimate question is whether the state has met its burden to 

show that [a] defendant’s confession was a product of [the] 

defendant’s free will.” State v. Chavez-Meza, 301 Or App 373, 

387, 456 P3d 322 (2019), rev den, 366 Or 493 (2020); see also

Powell, 352 Or at 223 (explaining that a court must make 

“an individualized inquiry into whether the alleged inducement was sufficiently compelling to influence [the] defendant’s decision to confess”).

Reviewing defendant’s claim for legal error, we conclude that the trial court’s findings, which are supported 

by the record, support its conclusion that defendant’s confession was voluntary. See Jackson, 364 Or at 21 (setting 

forth the legal error standard and providing that we are 

“bound by the trial court’s findings of fact if supported 

by the record”). As an initial matter, the court looked at 

the totality of the circumstances, as provided in Jackson, 

and made the required individualized findings regarding 

whether Ferns’s statements influenced defendant’s confession, as required in Chavez-Meza and Powell. As the court 

found, before the interview, defendant understood his 

rights, including the right to remain silent, Ferns properly 

administered Miranda warnings, and defendant evinced no 
Cite as 330 Or App 545 (2024) 557

signs of confusion. See Jackson, 364 Or at 26 (explaining 

that, although Miranda warnings are not determinative of 

whether a defendant’s confession was voluntary, it constitutes an important factor in the analysis of the totality of 

the circumstances). Moreover, defendant did not manifest 

atypical physiological responses to stress during the interview and, as the trial court found, Ferns did not observe 

anything out of the ordinary in defendant’s demeanor. In 

fact, he continued to deny the allegations even after Ferns 

made the statements that defendant claims were threats 

or promises. Furthermore, as the court found, none of the 

experts who testified for defendant and whom the court did 

not find credible could identify how defendant’s PTSD rendered his confession involuntary.

Under the totality of the circumstances, no threats 

or promises by Ferns induced defendant to the point of overbearing his free will. See id. at 21-22 (“[T]he voluntariness 

of an admission or confession depends on whether or not, 

in the totality of the circumstances, a defendant’s free will 

was overborne and his or her capacity for self-determination 

was critically impaired.”). The state, therefore, met its burden to show that defendant’s confession was a product of his 

free will. Accordingly, the trial court did not err in denying 

defendant’s motion to suppress.

We turn to defendant’s MJOA. In a combined argument, defendant challenges the sufficiency of the evidence 

to corroborate his confession as to first-degree rape and 

first-degree sexual penetration and, in turn, to prove that 

he committed those crimes.7 See ORS 136.425(2) (establishing that a confession must be corroborated to be admitted at 

trial); see also State v. Moreno, 276 Or App 102, 107-08, 366 

P3d 839, rev den, 359 Or 525, cert den, 580 US 937 (2016) 

(same). According to defendant, the lack of corroborating 

evidence rendered the evidence insufficient to prove that he 

committed those crimes and, as such, the court should have 

acquitted him. See ORS 136.445 (providing that the court 

should acquit a defendant where “the evidence introduced 

theretofore is such as would not support a verdict against 

the defendant”).

7 Defendant does not challenge his conviction for first-degree sodomy, Count 2.
558 State v. McCoombs

“We review a trial court’s denial of a[n] [MJOA] 

to determine whether, after viewing the facts in the light 

most favorable to the state, a rational trier of fact could have 

found the essential elements of the crime proved beyond a 

reasonable doubt.” Moreno, 276 Or App 107. When a defendant’s challenge to the denial of an MJOA involves the sufficiency of evidence to corroborate his confession, we must 

first determine whether the defendant’s confession was corroborated. Id. “Only if [the] defendant’s confession is supported by legally sufficient corroborating evidence may both 

the confession and the independent corroborating evidence 

be considered in determining whether th[e] [MJOA] standard has been met.” Id.

We proceed with the corroboration issue. The state 

contends that defendant’s confessions of rape and unlawful 

sexual penetration were corroborated. Regarding rape, the 

state argues that evidence that H told Snyder that defendant had left a mark with his “wee-wee” on H’s vaginal area 

and Snyder’s observation of redness on H’s hymen corroborated defendant’s confession that he put his penis into H’s 

vagina. We agree.

The corpus delicti of first-degree rape includes conduct where a person “ha[d] sexual intercourse with another 

person” who is “under 12 years of age.” ORS 163.375(1)(b). 

Here, defendant confessed to conduct that meets the elements of first-degree rape. He told Ferns that he had initially attempted to push his penis into H’s vagina but was 

unable to insert it and stopped after inserting it no more 

than “an inch, if that.” While defendant’s confession alone 

would be legally insufficient under ORS 136.425(2) to prove 

that defendant committed first-degree rape, the state introduced other evidence “from which the jury [could] draw an 

inference that tend[ed] to establish” that defendant pushed 

his penis into H’s vagina. State v. Hernandez, 256 Or App 

363, 366, 300 P3d 261, rev den, 353 Or 868 (2013). That evidence included evidence that H indicated that defendant 

had “made a mark with his wee-wee”—which H said was in 

his pants and identified in a drawing—on her vaginal area 

while they were in “mommy’s room,” along with signs of redness on H’s hymen.
Cite as 330 Or App 545 (2024) 559

Even if the redness observed was potentially normal, the evidence that the state introduced, viewed in the 

context of all the evidence, was sufficient to corroborate 

defendant’s confession that he pushed his penis into H’s 

vagina. See State v. Fry, 180 Or App 237, 246, 42 P3d 369 

(2002) (holding that a child’s statements that the “defendant 

touched her genitalia with his ‘thinger’ or his ‘pee-pee’ and 

that it hurt when he did so,” along with a physician’s testimony that the pain that the child related “could have been

the result” of the defendant touching the child’s hymen or of 

the defendant using force was sufficient to corroborate the 

defendant’s confession that he penetrated the child with his 

penis; although that evidence was “not conclusive evidence,” 

and permitted “more than one inference,” it was admissible 

under ORS 136.425 as “some other proof” that one instance 

of rape occurred (emphasis added)). Defendant’s confession 

was, thus, admissible to prove his guilt as to the rape charge, 

and the trial court did not err in denying defendant’s MJOA 

as to Count 1.

Regarding sexual penetration, the state admits that 

there is no specific evidence that defendant had put his finger 

in H’s anus but contends in two alternative arguments that 

there was nevertheless sufficient evidence to corroborate 

defendant’s confession. First, the state argues that evidence 

that defendant had taken H’s clothes off, that H was “la[ying] facedown with her knees tucked under her stomach,” 

and that there was baby oil in the house, was “arguably” sufficient corroborating evidence, likening this case to State v. 

Johnson,311 Or App 111, 120-21, 489 P3d 1046, rev den, 368 

Or 702 (2021) (holding that a child’s statement that she “had 

to put [her] mouth on daddy’s pee-pee” and that it had happened “before school” was sufficient to corroborate multiple 

counts of sodomy and sexual abuse because that statement 

permitted “a reasonable inference that it could refer to multiple instances” of both sodomy and sexual abuse (emphasis 

in original)). The evidence here, the state argues, considered 

collectively and in the light most favorable to the state, and 

given the particular nature and timing of the offenses and 

the specific circumstances described, was sufficient, given 

that H would not have been able to differentiate between 
560 State v. McCoombs

defendant penetrating her with his finger and penetrating 

her with his penis.

Second, the state argues that, even if its first argument fails, defendant’s own statement early in his interview 

with Ferns—that defendant’s finger “might have entered” H 

“once” when he was helping H with a bath as the “soap was 

really slippery”—was sufficient to corroborate defendant’s 

confession. In the state’s view, that statement constituted an 

admission made separate from his later and clearer inculpatory admissions. As in State v. Manzella, the state argues, 

defendant’s prior statement corroborated his subsequent 

confession. 306 Or 303, 316, 759 P2d 1078 (1988) (holding 

that a defendant’s “assertion that he was rear-ended by 

another car while waiting to turn left,” which was made “to 

further [the police’s] investigation of an automobile accident” 

and before the defendant’s disputed confession, was admissible to corroborate his confession that he had been “driving 

in violation of his license restrictions”).

We are not persuaded. The corpus delicti of firstdegree sexual penetration includes conduct where a “person 

penetrate[d] the ** * anus * * * of another with any object” 

and that the other person is “under 12 years of age.” ORS 

163.411(1)(b). Here, defendant confessed that he intentionally put his “middle finger” “[a]ll the way” up H’s anus for 

“[m]aybe two [or] three minutes,” and the indictment alleged 

that defendant penetrated H’s anus with “his finger.” 

However, no other evidence corroborates defendant’s confession as to that conduct.

Regarding the state’s first argument, this case is 

different from Johnson. There, we assessed whether statements made by the alleged child victim, B—including that 

B had to put her mouth on the defendant’s “pee-pee,” that it 

happened “before school,” and that the defendant told her 

that “mommy does it”—which undisputedly corroborated 

one count of sodomy, also tended to prove that the defendant committed additional counts of sodomy against B, to 

which he had confessed. See 311 Or App at 120. We concluded that the evidence corroborated the defendant’s confession because B did not limit the number of times that 

the conduct occurred, and because each of B’s disclosures 
Cite as 330 Or App 545 (2024) 561

appeared to correspond to separate occasions described in 

the defendant’s confession. Id. at 120-21 (“While B’s disclosure may, in the abstract, be viewed as referring to only a 

single act, when viewed in the light most favorable to the 

state, B’s statement permits a reasonable inference that it 

could refer to multiple instances.”).

In contrast to Johnson, here the issue is whether 

the evidence is legally sufficient to corroborate defendant’s 

statements admitting conduct distinct from other conduct to 

which he confessed, rather than to corroborate statements 

admitting to other occasions of the same conduct. The evidence urged by the state—H’s assertions that she was lying 

“facedown with her knees tucked under her stomach” when 

defendant put his “wee-wee” in her butt, and that there was 

baby oil in the house—does not permit, under the circumstances, an inference that defendant penetrated H with his 

finger. Despite the possibility that H may not have been able 

to differentiate between whether defendant used his finger 

or his penis, an inference that defendant used his finger 

would have required the jury to speculate that H’s perception was not accurate. Accordingly, even when viewed in the 

light most favorable to the state, that evidence did not permit a non-speculative inference that tends to establish that 

defendant penetrated H with his finger and, hence, did not 

meet the ORS 136.425 corroboration standard. See Moreno, 

276 Or App at 109 (to corroborate a confession, “[r]easonable 

inferences are permissible; speculation and guesswork are 

not”).

Regarding the state’s alternative argument that 

defendant’s earlier statement—that his finger “might have 

entered” H “once” accidentally—corroborated his confession, 

we are likewise unpersuaded. A defendant’s statement can 

only be used to corroborate the defendant’s confession if it is 

made for some purpose other than to acknowledge guilt, and 

if it is not so closely related to the confession as to become a 

part of it. Manzella, 306 Or at 315-17, 316 n 13 (emphasizing 

that “all statements made during the course of a confession 

are protected by ORS 136.425(1)” and that “[t]he state may 

not dissect a confession and use isolated statements to corroborate the ‘core’ of the confession” (emphasis in original)). 
562 State v. McCoombs

In Manzella, the defendant told a police officer arriving at 

the scene of an accident that he had been rear-ended while 

waiting in a traffic lane to make a left turn. Id. at 316. 

Afterwards, the defendant was confronted with information 

that the officer received from checking the defendant’s driver’s license, and he confessed to driving with a suspended 

license (DWS). Id. The defendant’s initial statement—that 

he had been rear-ended—could be used to corroborate the 

driving element of his later confession to DWS, because 

he made the statement for the purpose of furthering an 

investigation of an automobile accident, and it was not so 

closely related to his confession that it became part of it. 

Id. Moreover, that conclusion was bolstered by the fact that 

the defendant made the statement before being confronted 

with evidence that his license had been suspended and that 

a break occurred between that statement and his confession 

to DWS. Id.

By contrast, in State v. Simons, the defendant, who 

worked as a senior nursing assistant, prompted by police 

questioning about potential patient abuse allegations 

against him by R and S, told the police that he “noticed R’s 

sexual reaction in the shower, that S grabbed his penis more 

than once, and that she put her mouth on it at least once.” 214 

Or App 675, 680-81, 684, 167 P3d 476 (2007), rev den, 344 Or 

43 (2008). Later, during the same interview, the defendant 

confessed to allegations related to offenses against R, S, and 

another victim, all of whom were under his care. Id. at 680. 

Because the trial court found that the defendant’s earlier 

statements were made to acknowledge guilt and because 

those statements “were so intertwined with his confession 

as to be part of it” given that there was no temporal break 

between those statements and his confession, the statements could not corroborate his confession. Id. at 685.

This case is more like Simons than Manzella. In 

Manzella, the subject of the alleged offense had not come up 

at the time that the defendant made the disputed statement. 

Here, when defendant told Ferns that his finger “might have 

entered [H] * ** once” while he was bathing her, defendant 

had already been confronted with the allegations that he had 

sexually abused H. Like in Simons, defendant’s statement 
Cite as 330 Or App 545 (2024) 563

was prompted by questioning about the allegations at issue 

and there was no temporal break between defendant’s statement and the confession, which occurred just a few minutes 

later. As in Simons, we conclude that defendant’s statements “were so intertwined with his [subsequent] confession as to be part of it.” Id. at 685. Accordingly, regardless of 

whether defendant’s statements were made for the purpose 

of acknowledging guilt, those statements could not be used 

to corroborate defendant’s confession to sexual penetration. 

See Manzella, 306 Or at 316 & n 13 (explaining that no 

statements made during a confession can be used “isolated[ly] * * * to corroborate the ‘core’ of the confession”). The 

trial court therefore erred in denying defendant’s MJOA as 

to Count 3, first-degree sexual penetration.

We next address defendant’s challenges to his sentences. Because we have concluded that the trial court erred 

in denying defendant’s MJOA as to first-degree sexual penetration, we address only the sentences for first-degree sodomy and first-degree rape. Defendant asserts that the trial 

court erred in sentencing him pursuant to ORS 137.700(2) 

and ORS 144.103(2) to 300-month prison sentences and a 

lifetime PPS term for each of those offenses. In two separate arguments, he maintains that those sentences are constitutionally disproportionate, both facially and as applied, 

under Article I, section 16, and the Eighth Amendment. 

Defendant recognizes that we have previously held that 300-

month prison sentences under ORS 137.700 are not constitutionally disproportionate under Article I, section 16, but he 

asserts that those cases were wrongly decided. For the same 

reasons stated in his argument under Article I, section 16, 

defendant claims that his sentences are cruel and unusual, 

in violation of the Eighth Amendment. We are unpersuaded.

“A sentence is disproportionate to the offense [under 

Article I, section 16,] only if it ‘shock[s] the moral sense of 

all reasonable [persons] as to what is right and proper under 

the circumstances.’” State v. Wiese, 238 Or App 426, 428, 241 

P3d 1210 (2010), rev den, 349 Or 654 (2011) (quoting State v. 

Rodriguez/Buck, 347 Or 46, 57-58, 217 P3d 659 (2009) (brackets in Wiese)). We address proportionality challenges under 

Article I, section 16, using the factors set out in Rodriguez/
564 State v. McCoombs

Buck, which include “(1) a comparison of the severity of the 

penalty and the gravity of the crime; (2) a comparison of the 

penalties imposed for other, related crimes; and (3) the criminal history of the defendant.” 347 Or at 58.

As defendant acknowledges, we have previously 

concluded that a 300-month prison sentence required by 

ORS 137.700 (known as Jessica’s Law) is not facially disproportionate after applying the Rodriguez/Buck factors. See, 

e.g., State v. Hoover, 250 Or App 504, 280 P3d 1061, rev den, 

352 Or 564 (2012); State v. Alwinger, 236 Or App 240, 236 

P3d 755 (2010). Defendant’s arguments do not convince us 

that those cases were wrongly decided or that the facts of 

this case require a different result. As to the first factor, 

the severity of the penalty is congruent with the gravity of 

the crimes—rape and sodomy involving defendant’s fouryear-old stepdaughter, which occurred on more than one 

occasion—and defendant’s conduct underlying his convictions falls squarely within the type of conduct covered by 

those offenses. See State v. Pardee, 229 Or App 598, 603, 

215 P3d 870, rev den, 347 Or 349 (2009) (upholding terms of 

300 months for each count of sodomy and rape); see also, e.g., 

Alwinger, 236 Or App at 246 (upholding a 300-month prison 

sentence and a lifetime PPS term for a single occurrence of 

first-degree unlawful sexual penetration of a child).

As to the second factor, we are not persuaded that 

defendant’s sentences are disproportionate as compared to 

other more serious and related crimes. See id. (recognizing 

that “it is within the legislature’s role to decide that [crimes] 

justify the same penalty”); see also Pardee, 229 Or App at 603 

(disagreeing that “because the penalty for intentional murder—300 months’ incarceration without mandatory lifetime 

PPS—is less severe than the penalty that [the defendant] 

received” for each of several rape and sodomy convictions, 

“the latter penalties [we]re disproportionate” (emphasis in 

original)).

Finally, the third Rodriguez/Buck factor does not 

assist defendant either. Although defendant has no prior 

criminal history, in light of his conduct—which involved 

a four-year-old child to whom he was a father figure and 

whom he was supposed to protect—his lack of criminal 
Cite as 330 Or App 545 (2024) 565

history has little weight in balancing the proportionality of 

his sentences and is insufficient to render those sentences 

unconstitutional. As such, none of defendant’s arguments 

support his challenge. Because defendant has not convinced 

us that ORS 137.700, on its face or as applied here, was disproportionate under the Rodriguez/Buck factors, we decline 

to revisit our prior decisions, as he urges us to do.

Regarding his challenge under the Eighth 

Amendment, defendant was unable to demonstrate that his 

sentences were cruel and unusual. Because here he relied on 

the same argument that he presented under Article I, section 

16, with which we disagreed when applying the Rodriguez/

Buck factors, we reject defendant’s Eighth Amendment 

argument. See Wiese, 238 Or App at 429-30 (“[A]nalysis of 

the three [Rodriguez/Buck] factors under Article I, section 

16, provide a sufficient basis to decide whether [a] defendant’s sentence was * ** cruel and unusual under the Eighth 

Amendment.”).

In sum, the trial court did not err in sentencing 

defendant pursuant to ORS 137.700 and ORS 144.103, nor 

did it err in denying his motion to suppress or his MJOA 

as to first-degree rape. The court, however, erred in denying defendant’s motion for judgment of acquittal as to firstdegree sexual penetration (Count 3).

Conviction on Count 3 reversed; remanded for 

resentencing; otherwise affirmed.