Argued and Submitted May 28, 2014
Multnomah County Circuit Court. 120130226. Youlee Y. You, Judge.
Andrew D. Robinson, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[265 Or.App. 134] In this criminal case, defendant challenges his conviction on Counts 1 and 2--arising from a violent episode during which he shot a victim multiple times with a BB gun--and raises several assignments of error. We reject without published discussion all of defendant's assignments of error except his challenge to the trial court's merger ruling, which resulted in separate convictions for two counts of second-degree assault, ORS 163.175. He argues that his guilty verdicts on those counts should have merged into a single conviction because there was no evidence of a sufficient pause for defendant to renounce his criminal intent, as required by the " anti-merger" statute, ORS 161.067(3). The state responds that defendant's argument is unpreserved and that, regardless, the record evidences an adequate sufficient pause. We conclude that the matter is preserved and that the trial court erred in imposing separate convictions on those counts. Accordingly, we reverse and remand with instructions to enter a judgment of conviction for one count of assault in the second degree and for resentencing and otherwise affirm.
We review for legal error and are bound by the trial court's factual findings, provided there is sufficient evidence in the record to support them. State v. Cale, 263 Or.App. 635, 637, 330 P.3d 43 (2014). We state the facts consistently with that standard and focus on the facts involving defendant's convictions on second-degree assault. Defendant was the victim's boyfriend-pimp. He had a history of physically [265 Or.App. 135] abusing her and threatening the victim and her family. The victim attempted to break off communication with defendant but knew that when defendant fell silent " it probably wasn't * * * good." The day of the incident central to this case, defendant convinced the victim to meet him in a gas station parking lot. He offered assurances that there would not be " any problems" and that he was not going to hit her.
The victim drove to the parking lot and waited, as she had many times in the past. Defendant arrived, got into the victim's truck, and sat next to her in the front passenger seat. He immediately began questioning her about whether she had removed
spyware that he had installed on her cell phone. He pulled out a BB gun and began firing at her. The victim tried to protect her face with her hands, while defendant pelted her with BB shots and shouted insults. She " didn't know if [she] was going to die at first" and saw blood splattered " all over" the windshield, her clothes, the steering wheel, and the driver's side window. At some point, she tried to escape, but before she could get all the way out of the truck, defendant " reached across the console, and he snatched [her] by [her] hair" and slammed and locked the doors. Defendant spat in the victim's face and said that he hated her. After defendant had finished shooting (" or [was] out of BBs" ), he continued yelling for a period of 30 to 45 minutes. The victim was eventually able to drive away without defendant and seek medical aid. The victim was treated for two shots in the back of her head, three shots in her hand, and two shots in her right leg. She underwent surgery to remove BB pellets and lost feeling in part of her hand. A pellet remained lodged in her hand, because it could not be safely removed.
Defendant was charged with two counts of second-degree assault, ORS 163.175, one count of coercion, ORS 163.275, one count of fourth-degree assault, ORS 163.160, one count of unlawful use of a weapon, ORS 166.220, and one count of tampering with a witness, ORS 162.285. At defendant's bench trial, the victim testified to those facts [265 Or.App. 136] and recapped that she had been shot " in the head, then [her] hand, and then twice in [her] leg." She remembered that, at some point, defendant had used a closed fist to strike her three or four times in the side of her face. During closing arguments, defense counsel argued, among other things, that " Count 2 should merge into Count 1" because " this clearly is one continuous criminal episode" and there was " no pause for reflection." The trial court did not respond to that argument and convicted defendant on all counts. At sentencing, the state argued that the victim tried to escape from the truck before being shot in the leg, and that that action was " sufficient time in this criminal episode to stop and pause and reflect." The state requested that the trial court make " additional findings that Count 2 is a separate criminal episode, also resulting in qualitatively different harm, than in Count 1." The trial court did not make such findings for the purpose of merger and did not merge any guilty verdicts. On appeal, defendant argues that ORS 161.067(3) required the trial court to merge the verdicts on Counts 1 and 2 into a single conviction.
We must briefly consider the state's contention that the matter is not preserved. This court has concluded that, where both parties make " brief statements on their legal positions as to merger" and where the trial court considered merger to be an issue, preservation requirements are deemed satisfied. State v. King, 261 Or.App. 650, 653, 322 P.3d 597 (2014); State v. Sullivan, 234 Or.App. 38, 40-41, 227 P.3d 1186, adh'd to as modified on recons, 235 Or.App. 177, 230 P.3d 100 (2010). " [A]lthough it is true that defendant did not cite ORS 161.067(3) or discuss its specific provisions concerning when merger is required," the trial court may still properly understand the parties' arguments and the issue as one it needs to address. King, 261 Or.App. at 653. That is because we are " mindful that '[p]articularly in criminal cases, in which there is a premium on considerations of cost and speed, the realities of trial practice may be such that fairly abbreviated short-hand references suffice to put all on notice about the nature of a party's arguments.'" State v. Ohotto, 261 Or.App. 70, 73-74, 323 P.3d 306 (2014) (quoting State v. Walker, 350 Or. 540, 550, 258 P.3d 1228 (2011)). Further, we ...