Argued and submitted on May 16, 2013.
Marion County Circuit Court 10C46694 Claudia M. Burton, Judge.
Zachary Lovett Mazer, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Erin C. Lagesen, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and Sercombe, Judge, and Hadlock, Judge.
Defendant appeals a judgment of conviction for three counts of first-degree sodomy (Counts 1, 4, and 5), ORS 163.405, one count of first-degree unlawful sexual penetration (Count 2), ORS 163.411, one count of first-degree sexual abuse (Count 3), ORS 163.427, and two counts of second-degree sexual abuse (Counts 6 and 7), ORS 163.425. He raises five assignments of error. We reject defendant's first and second assignments of error without discussion. In his third assignment of error, defendant contends that, by requiring him to wear a stun belt, the trial court violated his right to be free from physical restraints during his trial. As explained below, we reject the arguments that defendant raises in conjunction with that assignment of error, which are not preserved for appeal. In his fourth and fifth assignments of error, defendant argues that the trial court erred when it failed to merge the convictions for Counts 6 and 7 into the convictions for Counts 4 and 5. As to those assignments of error, we agree with defendant and, therefore, remand with instructions.
Defendant was an inmate at Oregon State Penitentiary and Oregon State Correctional Institute when he was accused of sodomizing and sexually abusing two other inmates. At his trial, the court required defendant to wear a Remote Activated Custody Control Belt (stun belt). The court explained its reasoning as follows:
"THE COURT: * * * [A]s Counsel are aware, pursuant to the request of the sheriff's office, I, yesterday, entered a formal order submitted by the sheriff's department permitting the use of the [stun] belt on [defendant] in the courtroom. And [defense counsel], anything that you wanted to say about that for the record?
"[DEFENSE COUNSEL]: Yes, Your Honor. We do object to the use of the belt; however, when given the alternative of the shackles, since this is a jury trial, we will acquiesce to the belt.
"* * * * *
"THE COURT: And so I will just state for the record, and Counsel, I'm sure, are both aware of this, that my understanding from the sheriff's department was that [defendant] had some behavior issues such that they were concerned about his ability to, essentially, control his behavior in a courtroom.
"The [stun] belt is not visible to the jury. He is * * * dressed in civilian clothing, and so that's a mechanism to ensure that we don't have any outbursts or disruptions that is not visible to the jury, and therefore nothing that is going to prejudice the jurors by having them draw any conclusions about [defendant] based on that. So on that basis the Court did allow it."
On appeal, defendant contends that the trial court violated his right to be free from physical restraints during trial. Specifically, defendant argues that the trial court erroneously deferred to the sheriff's office when determining whether defendant should be required to wear a stun belt. Defendant also contends that the court impermissibly failed to "make a record of why the stun belt was necessary." Defendant asserts that the court's erroneous requirement that he wear a stun belt prejudiced him at trial by influencing his ...