Submitted July 30, 2018
County Circuit Court 14CR32483; David B. Connell, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Meredith Allen, Deputy Public Defender, Offce of Public
Defense Services, fled the briefs for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Michael A. Casper, Assistant Attorney General,
fled the brief for respondent.
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
was convicted of one count of first-degree rape, ORS 163.375,
and two counts of first-degree sexual abuse, ORS 163.427. He
appeals the judgment of conviction. In one assignment of
error, defendant argues that the court plainly erred in
failing to merge the guilty verdicts on the two sexual-abuse
charges into a single conviction, because the state did not
present evidence of a sufficient pause between the charged
acts for separate convictions. The state concedes that error.
In another assignment of error, defendant challenges part of
the restitution order included in his sentence.
Held: The trial court plainly erred in not merging
the two guilty verdicts for sexual abuse into a single
conviction, and the Court of Appeals exercised its discretion
to correct the error. Because the case is being remanded for
resentencing, the Court of Appeals declined to address the
alleged error in the restitution order.
Or.App. 882] Convictions on Counts 3 and 4 reversed and
remanded for entry of a judgment of conviction for one count
of first-degree sexual abuse; remanded for resentencing;
Or.App. 883]AOYAGI, J.
was convicted of one count of first-degree rape, ORS 163.375
(Count 1); and two counts of first-degree sexual abuse, ORS
163.427 (Counts 3 and 4). He was sentenced to 300 months'
imprisonment on Count 1, 75 months' imprisonment on Count
3, and 75 months' imprisonment on Count 4, all to run
concurrently. Defendant also was ordered to pay restitution.
Defendant appeals, raising five assignments of error.
reject defendant's first, second, and third assignments
of error without written discussion.
fourth assignment of error, defendant asserts that the trial
court plainly erred by entering separate convictions on
Counts 3 and 4, and the state concedes the error. Count 3
alleged that defendant touched the victim's vagina with
his fingers, while Count 4 alleged that defendant caused the
victim to touch his penis. Defendant argues that, under ORS
161.067(3), the court should have merged the guilty verdicts
on those two counts into a single conviction, because the two
sexual contacts occurred during the same criminal episode and
without any evidence of a significant pause. See ORS
161.067(3) (for a defendant's "repeated violations
of the same statutory provision against the same victim"
to be separately punishable, each violation must be separated
by a sufficient pause to afford the defendant an opportunity
to renounce his criminal intention). Defendant did not
preserve the alleged error, but he asserts that it meets the
requirements for plain error review and asks us to exercise
our discretion to review it. See ORAP 5.45(1)
(unpreserved errors will not be considered on appeal, except
that "the appellate court may, in its discretion,
consider a plain error"). The state concedes that the
trial court committed plain error and does not dispute that
it would be appropriate to exercise our discretion to correct
review an unpreserved error if the error is one of law, is
obvious and not reasonably in dispute, and [296 Or.App. 884]
does not require us to go outside the record or choose
between competing inferences to correct it. Ailes v.
Portland Meadows, Inc., 312 Or. 376, 381-82, 823 P.2d
956 (1991). Those requirements are met here. Whether multiple
verdicts merge into a single conviction is a question of law.
State v. Huffman, 234 Or.App. 177, 183, 227 P.3d
1206 (2010). On this record, the correct application of ORS
161.067(3) is obvious and not reasonably in dispute. See
State v. Dugan, 282 Or.App. 768, 769, 387 P.3d 439
(2016) (concluding that two guilty verdicts for sexual abuse,
based on touching two of the victim's body parts in a
single incident, should have merged into a single
conviction); State v. Nelson, 282 Or.App. 427, 431,
447, 386 P.3d 73 (2016) (concluding that guilty verdicts on
three counts of sexual abuse should have merged into a single
conviction, where defendant's conduct-which involved
making sexual contact with three different body parts of the
victim-occurred in one location, without pause in the
defendant's aggression or any significant interruption).
Lastly, nothing requires us to go outside the record or to
choose between competing inferences.
error therefore is plain, and, in light of the gravity of the
error in imposing an additional conviction, and for the same
reasons as described in State v. Steltz, 259 Or.App.
212, 220-21, 313 P.3d 312 (2013), we exercise our discretion
to correct the error. In doing so, we note that the state
concedes not only that the existing evidence was insufficient
to support a finding of a sufficient pause for separate
convictions but also that there is no "basis to conclude