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State v. Adams

Court of Appeals of Oregon

June 28, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
CLINTON REED ADAMS, Defendant-Appellant.

          Submitted April 29, 2015

         Washington County Circuit Court C120045CR; Rick Knapp, Judge.

          Peter Gartlan, Chief Defender, and Erik Blumenthal, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Pamela J. Walsh, Assistant Attorney General, fled the brief for respondent.

          Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.

         Case Summary: Defendant appeals a judgment of conviction for two counts of first-degree sexual abuse and three counts of first-degree encouraging child sexual abuse and a supplemental judgment imposing a $5, 000 compensatory fine. Among other things, defendant argues that the trial court erred in denying his demurrer to the indictment and in imposing the compensatory fine. Held: The trial court did not err. The trial court did not retract its initial ruling denying defendant's demurrer as untimely, and the ruling is affirmed on that basis. The trial court also did not err in imposing the compensatory fine because the evidence is sufficient to support the court's determination that defendant's criminal conduct caused the victim economic damages, and the state was not required to prove that defendant caused the victim economic damages in the specific amount of the compensatory fine imposed.

         Affrmed.

         [286 Or. 377] ARMSTRONG, P. J.

         Defendant appeals a judgment of conviction for two counts of first-degree sexual abuse and three counts of first-degree encouraging child sexual abuse and a supplemental judgment imposing a $5, 000 compensatory fine. We write to address defendant's assignments of error to the trial court's denial of his demurrer and the imposition of the compensatory fine. As to those assignments, we affirm. We reject defendant's remaining two assignments of error without published discussion.

         Defendant was charged in a single indictment with one count of first-degree sodomy, three counts of first-degree sexual abuse, and three counts of first-degree encouraging child sexual abuse. One week before trial, he demurred to the indictment on the ground that the sodomy and first-degree sexual abuse counts-which were based on his alleged abuse of a single victim-and the encouraging child sexual abuse counts-which were based on his alleged duplication of child pornography-were not properly joined in the indictment under ORS 132.560. See State v. Poston, 277 Or.App. 137, 144-45, 370 P.3d 904 (2016), adh'd to on recons, 285 Or.App. 750, __ P.3d __ (2017) (holding that the basis for joinder of crimes must be alleged in the charging instrument "by alleging the basis for joinder in the language of the joinder statute or by alleging facts sufficient to establish compliance with the joinder statute"). The trial court denied the demurrer both on the ground that the demurrer was untimely and on the ground that, under State v. Norkeveck, 214 Or.App. 553, 560-61, 168 P.3d 265 (2007), rev den, 344 Or. 558 (2008), the charges could be joined as a common scheme or plan, and defendant would not be substantially prejudiced by trying the charges together.

         Following the court's denial of his demurrer, defendant pleaded guilty to the three counts of encouraging child sexual abuse, and the balance of the charges were tried to a jury. The jury found defendant guilty of two counts of first-degree sexual abuse.

         As part of sentencing, the court ordered defendant to pay a $5, 000 compensatory fine to an identified victim [286 Or. 378] of one of the encouraging child sexual abuse counts. For the hearing, the state presented an exhibit packet for that victim that established the victim's economic damages of $977, 241 for future mental health counseling, education and vocational counseling, and lost earnings. That packet included a victim-impact statement from the victim explaining how the continued sharing over the internet of the videos of her being sexually abused continues to injure her and to cause her economic damages. In imposing the compensatory fine, the trial court found that, when defendant downloaded and viewed the images, it caused a continued trauma to the victim and that the submitted exhibits established that she had economic damages as a result. With respect to the amount imposed, the court concluded that, if this were a civil case, a fair jury would return a verdict of about $5, 000, and accordingly, the court imposed that amount as a compensatory fine.

         We begin with defendant's contention that the trial court erred in denying his demurrer to the indictment. We review the denial of a demurrer to an indictment for legal error. State v. Cervantes, 232 Or.App. 567, 580, 223 P.3d 425 (2009). Under ORS 135.610(1), "[t]he demurrer shall be entered either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose." A trial court has discretion to allow a defendant to bring a demurrer "at such other time." State v. Wimber, 315 Or. 103, 111-12, 843 P.2d 424 (1992).

         Here, defendant does not contend that his demurrer was timely under ORS 135.610(1); rather, he asserts that the trial court ultimately reconsidered denying his demurrer as untimely and, instead, clarified that it was denying the demurrer on its merits. We reject defendant's assertion. The trial court expressly denied defendant's demurrer on the basis that it was untimely and without merit, based on Norkeveck. On review of the record, we agree with the state that the trial court did not implicitly or explicitly reconsider or retract its decision to deny defendant's demurrer as untimely when it later clarified the reason that severance of the charges was not required under Norkeveck. Defendant does not argue that the trial court abused its discretion by [286 Or. 379] denying him the ...


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