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State v. Loving

Court of Appeals of Oregon

March 21, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
KHAMORIE V. LOVING, aka Khamori Loving, Defendant-Appellant.

          Argued and submitted October 27, 2016

          Multnomah County Circuit Court 14CR06032; A158923 Edward J. Jones, Judge.

          David Sherbo-Huggins, Deputy Public Defender, argued the cause for appellant. With him on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Offce of Public Defense Services.

          Jordan R. Silk, Assistant Attorney General, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Karla H. Ferrall, Assistant Attorney General.

          Before Armstrong, Presiding Judge, and Tookey, Judge, and Shorr, Judge.

         Case Summery

         Convictions on Counts 1 and 3 reversed and remanded for entry of a judgment of conviction for one count of first-degree sexual abuse; remanded for resentencing; otherwise affirmed.

         Defendant appeals a judgment of conviction for, among other things, two counts of first-degree sexual abuse, contending that the trial court plainly erred by failing to merge the guilty verdicts on those counts into a single conviction. A jury convicted defendant on the counts for touching different parts of the victim's body in the course of a single encounter between defendant and the victim. Held: The trial court plainly erred in failing to merge the guilty verdicts on the two counts, and the Court of Appeals exercised its discretion to correct the error.

         [290 Or. 806] Convictions on Counts 1 and 3 reversed and remanded for entry of a judgment of conviction for one count of first-degree sexual abuse; remanded for resentencing; otherwise affirmed.

         [290 Or. 807] ARMSTRONG, P. J.

         Defendant appeals a judgment of conviction for, among other things, two counts of first-degree sexual abuse, ORS 163.427 (Counts 1 and 3), contending that the trial court plainly erred by failing to merge the guilty verdicts on those counts into a single conviction.[1] A jury convicted defendant of those counts for touching different parts of the victim's body in the course of a single encounter between defendant and the victim. Defendant contends that the trial court was required to merge the verdicts on those counts into a single conviction for first-degree sexual abuse because the record does not establish that there was a pause between defendant's acts of touching the victim that was sufficient under ORS 161.067(3) to prevent the merger of the verdicts. Consequently, according to defendant, the trial court plainly erred by failing to merge the verdicts on Counts 1 and 3 into a single conviction. The state responds that the error does not qualify for plain-error review because the legal point on which defendant's argument relies is not obvious and, even if the legal point is obvious, we should nonetheless decline to exercise our discretion to correct the error. We agree with defendant that the trial court plainly erred in failing to merge the verdicts and that we should exercise our discretion to correct the error. Accordingly, we reverse defendant's convictions on Counts 1 and 3 and remand for entry of a judgment of conviction for one count of first-degree sexual abuse and for resentencing but otherwise affirm.

         We state the facts in the light most favorable to the state to determine whether merger was required. See, e.g., State v. Nelson, 282 Or.App. 427, 430, 386 P.3d 73 (2016). The victim, who was 12 years old, was lying in bed asleep one evening and awakened to discover defendant rubbing his thigh. Defendant then placed his finger in the victim's anus. The victim rolled over, and defendant left the victim's bed. Eventually, defendant was found guilty and convicted of two counts of first-degree sexual abuse, one for touching the victim's thigh and the other for touching his anus.

         [290 Or. 808] Defendant assigns error to the trial court's failure to merge the two guilty verdicts into a single conviction, arguing that the evidence, viewed in the light most favorable to the state, demonstrates that the two acts of touching occurred without a pause between them that was sufficient under ORS 161.067(3) to prevent the merger of the verdicts. The state responds that the verdicts should not be merged because touching two distinct body parts of a victim's body are not part of "the same conduct or criminal episode" and, under ORS 161.067(3), the verdicts cannot be merged. Alternatively, the state contends that the record establishes that the trier of fact could draw a nonspeculative inference that there was a sufficient pause between defendant's touching of the victim's thigh and anus, thereby also foreclosing merger under ORS 161.067(3).

         Since this case was submitted, we held in Nelson that touching separate parts of a victim's body is not, by itself, sufficient to preclude the merger of convictions under ORS 161.067(3). 282 Or.App. at 436-42. Rather, the state must introduce evidence from which the trier of fact could draw a nonspeculative inference that there was a sufficient pause between the acts constituting sexual abuse. Id. at 446-47; see also State v. Williams,284 Or.App. 194, 196, 391 P.3d 994 (2017) ("[T]he record does not contain evidence that would allow a nonspeculative inference that something of significance occurred between the defendant's sequential acts of touching." (Internal quotation marks omitted.)). Thus, for the reasons stated in Nelson, we reject the state's first argument-viz., that the verdicts on the counts cannot merge because they involved the touching of different parts of the victim's body. Further, we conclude that no rational trier of fact could draw a nonspeculative inference that there was a pause between defendant's acts of touching the victim's thigh and anus sufficient to prevent merger under ORS 161.067(3), because the only evidence in the record is the victim's statement that the touching occurred in immediate succession. See, e.g., Nelson, 282 Or.App. at 443 ("We have interpreted sufficient pause, ...


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