State v. Tricker

SCHWAB, C. J. Defendant appeals from his conviction of first-degree rape, ORS 163.375(l)(c), and the resulting sentence. Defendant was charged with having engaged in sexual intercourse with his daughter, who was at the time under the age of 16. He contends that the trial court erred in failing to order, on its own motion, a judgment of acquittal, arguing that there was no evidence of penetration. His daughter testified: "* * * I went into the camper and Dad was there, and he locked the door and he started to kiss me and started to undress me. He took my clothes off and made me kneel down on the floor of the camper and he tried to insert his penis into my vagina, and he couldn’t continue because he said the camper shook too badly and it was, be noticeable from the outside.” Assuming for the sake of argument that this testimony is not sufficient to make the question of penetration one for the jury, the fact remains that the defendant did not raise this issue below and we see no reason to here depart from the general rule that issues not raised and preserved in the trial court cannot be raised on appeal. State v. Long, 246 Or 394, 425 P2d 528 (1967); State v. Redeman, 9 Or App 329, 496 P2d 230 (1972). The imposition of a mandatory minimum sentence was error, because the crime occurred prior to October 4, 1978. State v. Bussey, 34 Or App 535, 579 P2d 264 (1978). Reversed and remanded for resentencing.