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In re K. R. S.

Court of Appeals of Oregon

June 26, 2019

In the Matter of K. R. S., a Youth.
v.
K. R. S., Appellant. STATE OF OREGON, Respondent,

          Argued and submitted January 9, 2018

          Yamhill County Circuit Court 15JU00894; Ladd J. Wiles, Judge.

          Joshua B. Crowther, Deputy Chief Defender, argued the cause for appellant. Also on the brief was Shannon Storey, Chief Defender, Juvenile Appellate Section, Offce of Public Defense Services.

          Lauren P. Robertson, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

         Case Summary:

         Youth appeals two judgments of the juvenile court. The first judgment adjudicated youth as being within the delinquency jurisdiction of the juvenile court for conduct that, if committed by an adult, would constitute one count of first-degree unlawful sexual penetration, ORS 163.411, and three counts of first-degree sexual abuse, ORS 163.427. In the second judgment, regarding disposition, the juvenile court placed youth on probation for five years with conditions that include sex offender treatment and registration requirements. On appeal, youth raises a single assignment of error, arguing that the juvenile court [298 Or.App. 319] erred when it refused to merge the three counts of first-degree sexual abuse into a single adjudication because, under ORS 161.067(3), merger would be required under the circumstances of this case if it were a criminal proceeding, and merger principles apply in juvenile delinquency proceedings. Held: The trial court erred. ORS 161.067(3) applies to delinquency adjudications in the same way that it does to determinations of guilt in criminal cases. And, because the three instances of first-degree sexual abuse were not "separated * * * by a sufficient pause in the [youth's] criminal conduct to afford the [youth] an opportunity to renounce the criminal intent," those counts should have merged.

         Jurisdictional judgment reversed and remanded for entry of a judgment reflecting adjudication for a single count of first-degree sexual abuse; otherwise affirmed. Dispositional judgment vacated and remanded.

         [298 Or.App. 320] HADLOCK, P. J.

         Youth appeals two judgments of the juvenile court. The first judgment adjudicated youth as being within the delinquency jurisdiction of the juvenile court for conduct that, if committed by an adult, would constitute one count of first-degree unlawful sexual penetration, ORS 163.411, and three counts of first-degree sexual abuse, ORS 163.427. In the second judgment, regarding disposition, the juvenile court placed youth on probation for five years with conditions that include sex offender treatment and registration requirements. On appeal, youth raises a single assignment of error, arguing that the juvenile court erred when it refused to merge the three counts of first-degree sexual abuse into a single adjudication. For the reasons set out below, we agree that the three sexual abuse counts should have merged. Accordingly, we reverse and remand the jurisdictional judgment for entry of a single count of first-degree sexual abuse and otherwise affirm. We also vacate and remand the dispositional judgment.

         The underlying facts are not disputed. At the pertinent time, youth was 14 years old and the victim, the granddaughter of youth's foster parents, was 10 years old. The allegations against youth relate to his conduct on a single night, when he, the victim, and the victim's mother were sleeping together in one bed. The victim awoke to youth "rubbing [the] top part of [her] body" and then trying to kiss her cheek. Youth "went into [the victim's] pants" and touched her vagina for "like five minutes or so." Then, youth put the victim's hand into his underwear and made her touch his "private parts." During that time, the victim "was trying to push away," but youth "moved [her] back closer." The victim went to the bathroom, "and then that's when it stopped, and it didn't happen again."

         The state filed a delinquency petition alleging that youth was within the juvenile court's jurisdiction for one count of first-degree unlawful sexual penetration and three counts of first-degree sexual abuse, one count each for touching the victim's vaginal area, for touching the victim's breasts, and for causing the victim to touch youth's penis. The court found youth within its jurisdiction on all four counts.

         [298 Or.App. 321] At the subsequent dispositional hearing, youth moved for the three sexual-abuse adjudications to be merged under ORS 161.067(3) as well as on constitutional double jeopardy grounds. Youth noted that the counts all involved the same statutory provision, the same victim, and a single criminal episode. Accordingly, youth argued, the counts should merge because "there was no evidence of a sufficient pause between the actions to give [youth] an opportunity to renounce their criminal intent." Youth asserted that, if merger principles were not applied in this juvenile proceeding, he was "going to be perversely subject to harsher collateral consequences than a similarly situated adult would be if they were found to have committed the same act under the same circumstances." In response, the state argued that merger was not required because each count alleged the touching of a different body part. The juvenile court did not address whether merger principles apply in juvenile delinquency cases. Instead, implicitly assuming that those principles could apply, the court nonetheless declined to merge the three counts because each count was based on touching of "separate and distinct sexual or intimate parts."

         On appeal, youth argues both that (1) merger would be required under the circumstances of this case if it were a criminal proceeding, and (2) merger principles apply in juvenile delinquency proceedings. We start by addressing the first of youth's arguments because, if merger would not be required on these facts even if they were presented in the criminal context, we would not need to reach youth's second argument. See State v. G. L. D., 253 Or.App. 416, 423, 290 P.3d 852 (2012), rev den,354 Or. 597 (2013) (court did not ...


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