State v. Dugan

387 P.3d 439, 282 Or. App. 768, 2016 Ore. App. LEXIS 1585
CourtCourt of Appeals of Oregon
DecidedDecember 14, 2016
DocketCR1200892; A156304
StatusPublished
Cited by8 cases

This text of 387 P.3d 439 (State v. Dugan) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Dugan, 387 P.3d 439, 282 Or. App. 768, 2016 Ore. App. LEXIS 1585 (Or. Ct. App. 2016).

Opinion

DUNCAN, P. J.

Defendant appeals the trial court’s judgment convicting him of two counts of sexual abuse in the first degree, ORS 163.427. On appeal, defendant raises three sentencing-related assignments of error. In his first assignment, he asserts that the trial court erred by failing to merge the guilty verdicts on the two counts. As explained below, we conclude that merger was required under ORS 161.067(3), which provides for merger of guilty verdicts for crimes that are committed in a single criminal episode, violate only one statutory provision, involve only one victim, and are not separated by a sufficient pause to afford the defendant an opportunity to renounce his criminal intent. Because the trial court erred by failing to merge the guilty verdicts, we reverse and remand for resentencing; consequently, we do not reach defendant’s other assignments of error.

On June 6, 2012, defendant, who was 16 years old, approached the victim, who was about 65 years old and lived in the same cul-de-sac as defendant. Defendant told the victim that he heard a cat crying in a field. The victim accompanied defendant to the field and the two began to walk through the brush. When the victim did not hear a cat, she told defendant that she was going to go home. Defendant then picked her up and continued walking through the field. After struggling to get down, the victim proceeded to return home, and defendant followed her.

Upon entering the victim’s house, inside the victim’s entry way, defendant grabbed the victim around the waist and kissed her on the lips. The victim asked defendant, “What are you doing? This is crazy.” Defendant responded, “I want to have a relationship with you” to which the victim replied, “I’m 66. You’re 16. That is crazy.” Defendant unzipped the victim’s sweatshirt and put his hand down her bra, touching her breast. He then put his hands down her pants and rubbed her vagina over her underwear. In response to the contact, the victim said, “What are you doing? *** You’re committing a crime.” Defendant said, “This is going to happen, whether you want it to or not,” and continued to rub the victim’s vaginal area. The victim testified that, throughout the 10-to-15 minute incident, she struggled against [770]*770defendant’s grip. Eventually, the victim was able to convince defendant to leave. She then called 9-1-1. The officer who responded to the dispatch ultimately brought defendant to the Clackamas County Juvenile Reception Center.

Defendant, who was tried as an adult under ORS 137.707, waived his right to a jury trial and the trial court found him guilty of two counts of sexual abuse in the first degree, ORS 163.427. Defendant filed a sentencing memorandum, arguing that the two guilty verdicts should merge. At sentencing, the state argued that the verdicts should not merge because defendant committed the crime “in two different ways: one by touching her vaginal area; one by touching her breast.” Defendant responded that the verdicts should merge because the two offenses, “according to the State’s evidence, were done at exactly the same time or, if not, maybe seconds apart.” The trial court clarified: “So your position is it was a continuous and uninterrupted course of conduct.” Defendant responded:

“Continuous and uninterrupted. No pause. No—it’s not a situation where a person did a crime and then had a chance to reflect on it and then decides to commit another crime. This was all done part and parcel of the same incident, according to the evidence that was presented at trial. So there’s no—there are no grounds to do anything other than merge these into one single conviction.”

(Emphasis added.)

The trial court ultimately determined:

“As to the merger issue into one conviction, my thought is that there are two separate counts and two separate convictions, because there were two violations of the same statutory provision against one victim. However, because they arose during one uninterrupted course of conduct, the Court would not be authorized to impose and it would simply not be appropriate to impose consecutive sanctions or consecutive sentences.”

Thereafter, the trial court entered a judgment convicting defendant of both counts and imposing, on each count, a mandatory minimum sentence of 75 months in prison, followed by 45 months of post-prison supervision. The judgment states that the sentences are to be served concurrently.

[771]*771On appeal, defendant argues that his guilty verdicts must merge into a single conviction because “the record does not show that there was a sufficient pause between the two violations to afford defendant an opportunity to renounce his criminal intent.” Defendant bases his argument on ORS 161.067(3), which provides that “[w]hen the same conduct or criminal episode violates only one statutory provision and involves only one victim,” in order to be separately punishable, each violation “must be separated from other such violations by a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent.” We have interpreted “sufficient pause,” within the meaning of ORS 161.067(3), to mean “a temporary or brief cessation of a defendant’s criminal conduct that occurs between repeated violations and is so marked in scope or quality that it affords a defendant the opportunity to renounce his or her criminal intent.” State v. Huffman, 234 Or App 177, 184, 227 P3d 1206 (2010). Additionally, for repeated violations to be separately punishable, “one crime must end before another begins.” Id. at 185.

In this case, defendant asserts that we should analyze whether there was a “sufficient pause” by looking to the assault cases. Defendant contends that, in the context of assault, we have “held that when a defendant’s assaultive conduct is not interrupted by a significant intervening event, the mere passage of time, by itself, does not establish a sufficient pause.” He asserts that, in this case, “[o]ther than the mere passage of time necessary to complete the two acts of touching, there was no significant intervening event that so interrupted defendant’s assaultive conduct as to afford him an opportunity to renounce his criminal intent,” and points out that the trial court itself found that defendant’s actions “arose during one uninterrupted course of conduct.”

The state responds that ORS 161.067(3) does not apply in this case because defendant’s two separate but successive acts of sexual contact do not constitute the “same conduct or criminal episode” within the meaning of ORS 161.067(3).

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Bluebook (online)
387 P.3d 439, 282 Or. App. 768, 2016 Ore. App. LEXIS 1585, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-dugan-orctapp-2016.