Submitted January 29, 2014
Lincoln County Circuit Court. 104476. Sheryl Bachart, Judge.
Peter Gartlan, Chief Defender, and Stephanie J. Hortsch, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Shannon T. Reel, Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.
HASELTON, C. J.
[264 Or.App. 584] Defendant, who was convicted of one count of second-degree sexual abuse (Count 2), ORS 163.425, one count of third-degree sodomy (Count 3), ORS 163.385, and two counts of third-degree sexual abuse (Counts 4 and 5), ORS 163.415, appeals, arguing that the trial court plainly erred in failing to merge Counts 2 and 3. We conclude that, under the reasoning of State v. Ofodrinwa, 353 Or. 507, 300 P.3d 154 (2013)--in which the Supreme Court concluded that a victim's incapacity to consent due to minority is included in " the victim does not consent" element of second-degree sexual abuse--defendant's guilty verdict for third-degree sodomy must, beyond any reasonable dispute, merge with his guilty verdict for second-degree sexual abuse. Accordingly, the trial court plainly erred in entering separate convictions. We exercise our discretion to correct that error and reverse and remand with instructions.
We review a trial court's decision to not merge verdicts for errors of law. State v. Watkins, 236 Or.App. 339, 345, 236 P.3d 770, rev den, 349 Or. 480, 246 P.3d 745 (2010).
The material facts are few and undispeted. When K was 15 years old, she was an overnight guest at defendant's residence. Defendant went into the living room and sat on the couch where K had been sleeping. He put his hand into her pants and touched her vagina. He also put his hand up her shirt
and touched her breast. He then moved her pajama pants and underwear to the side and licked her vagina. When defendant tried to remove her clothes, K pulled her pajama pants up and curled into a ball. Defendant then left the room.
Defendant was charged with multiple sexual offenses. As pertinent here, in Count 2 of the indictment, the state alleged that defendant committed second-degree sexual abuse when he " did unlawfully and knowingly subject [K] to deviate sexual intercourse by touching her vagina with his tongue, the said [K] not consenting thereto, and [K] [264 Or.App. 585] is unable to consent because she is under the age of 18."  The state alleged that that same conduct constituted third-degree sodomy and alleged, in Count 3 of the indictment, that defendant " did unlawfully and knowingly engage in deviate sexual intercourse with [K], a child under the age of 16."  A jury found defendant guilty on Counts 2 and 3; he did not argue that the verdicts on those counts should merge; and the trial court ultimately entered separate convictions.
Defendant appeals, arguing that the trial court should have merged the two guilty verdicts on those counts into a single conviction. Defendant acknowledges that he failed to preserve his merger argument, but he requests that we review for plain error and that we exercise our discretion to correct that error. See ORAP 5.45(1) (" No matter claimed as error will be considered on appeal unless the claim of error was preserved in the lower court and is assigned as error in the ...