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State v. Black

Court of Appeals of Oregon

April 22, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
DAVID JAMES BLACK, Defendant-Appellant

Submitted March 16, 2015.

C110964CR. Washington County Circuit Court. Kirsten E. Thompson, Judge.

Peter Gartlan, Chief Defender, and David O. Ferry, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Timothy A. Sylwester, Senior Assistant Attorney General, filed the brief for respondent.

Before Duncan, Presiding Judge, and Lagesen, Judge, and Flynn, Judge.

OPINION

[270 Or.App. 503] DUNCAN, P. J.

Defendant appeals the trial court's judgment convicting him of three counts of sexual abuse in the first degree (Counts 1, 2, and 4), ORS 163.427, and one count of unlawful sexual penetration in the second degree (Count 3), ORS 163.408. On appeal, defendant assigns error to the trial court's entry of separate convictions for two of the sexual abuse in the first degree counts, Counts 1 and 2; he contends that the trial court should

Page 1155

have merged the guilty verdicts on those counts and entered a single conviction for those counts. The state concedes that the trial court erred in that respect. For the reasons explained below, we agree with defendant and accept the state's concession. Accordingly, we reverse and remand with instructions to merge the guilty verdicts on Counts 1 and 2 into a single conviction and for resentencing, but otherwise affirm.[1]

First-degree sexual abuse is defined by ORS 163.427, which provides, in pertinent part:

" (1) A person commits the crime of sexual abuse in the first degree when that person:
" (a) Subjects another person to sexual contact and:
" (A) The victim is less than 14 years of age;
" (B) The victim is subjected to forcible compulsion by ...

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