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STATE v. REED

(CC 010533744; CA A117819; SC S51670).

118 P.3d 791 (2005)

STATE of Oregon, Respondent on Review, v. Donald Richard REED, Petitioner on Review.

Supreme Court of Oregon, En Banc.

Decided September 1, 2005.

Attorney(s) appearing for the Case

Shawn Evans Wiley, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause for petitioner on review. With him on the briefs were Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, and Susan F. Drake, Deputy Public Defender.

Steven Powers, Assistant Attorney General, Salem, argued the cause for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

De MUNIZ, J.

The issue in this criminal case is whether the state introduced evidence sufficient at trial to establish that defendant had engaged in prohibited sexual activity because the victim had been "incapable of consenting" to certain sexual acts by reason of mental defect under ORS 163.427(1)(a)(C) (first-degree sexual abuse), ORS 163.411(1)(c) (first-degree unlawful sexual penetration), ORS 163.375(1)(d) (first-degree...

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