Submitted April 24, 2018
County Circuit Court 14CR02219 Gary Lee Williams, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
David Sherbo-Huggins, Deputy Public Defender, Office of
Public Defense Services, filed the opening brief for
appellant. Shawn Thomas Lachat filed the supplemental and
reply briefs pro se.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Cecil A. Reniche-Smith, Assistant Attorney
General, filed the brief for respondent.
Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi,
Summary: Defendant appeals from a judgment of conviction for
first-degree unlawful sexual penetration, attempted
first-degree rape, misdemeanor fourth-degree assault, and
felony fourth-degree assault constituting domestic violence.
Defendant raises five assignments of error challenging the
trial court's rulings that allowed defendant's
counselor to testify about defendant's statements to her.
In a sixth assignment of error, defendant argues that the
trial court plainly erred when it failed to merge the
jury's guilty verdicts on the two assault counts (Counts
3 and 4) into a single conviction for felony fourth-degree
assault. Held: Any error associated with admitting
defendant's counselor's testimony was harmless.
However, because the Count 3 lesser-included offense
(misdemeanor fourth-degree assault) of which defendant was
found guilty includes no element [298 Or.App. 580] that is
not also included within the felony fourth-degree assault
charged in Count 4, the verdicts plainly must merge.
Or.App. 581] HADLOCK, P. J.
was tried to a jury on multiple charges related to his sexual
assault of his wife, D, part of which was witnessed by their
young child. The jury found defendant guilty of first-degree
unlawful sexual penetration, attempted first-degree rape,
misdemeanor fourth-degree assault, and felony fourth-degree
assault constituting domestic violence. On appeal from the
resulting judgment of conviction, defendant raises five
assignments of error challenging the trial court's
rulings that allowed defendant's counselor to testify
about certain statements that defendant made to her in
counseling sessions. In a sixth assignment of error,
defendant makes an unpreserved argument that the trial court
erred when it failed to merge the jury's guilty verdicts
on the two assault counts (Counts 3 and 4) into a single
conviction for felony fourth-degree assault. Defendant also
has filed a pro se supplemental brief arguing that
the trial court should have dismissed the case on the ground
of vindictive prosecution.
conclude that defendant's arguments related to the
counselor's testimony present no basis for reversal
because, as explained below, any error associated with
admitting that testimony was harmless. We reject the pro
se assignment of error without discussion. However, we
agree with defendant (and the state, which concedes the
point) that the trial court plainly should have merged the
guilty verdicts on the two assault counts into a single
conviction for felony fourth-degree assault constituting
domestic violence. Accordingly, we reverse and remand Counts
3 and 4 for the trial court to merge those guilty verdicts
and remand for resentencing.
noted, defendant asserts in his first five assignments of
error that the trial court erred by admitting certain
testimony from defendant's counselor about what defendant
told her. Specifically, defendant contends that the court
erred in determining that he had waived the OEC 507 privilege
associated with those communications when he told other
people something about them. In considering that [298 Or.App.
582] argument, we ordinarily would review the record in the
light most consistent with the trial court's ruling,
bound by the court's implicit and explicit findings if
the record supports them. See Rowen v. Gonenne, 274
Or.App. 803, 814-15, 362 P.3d 694 (2015) (applying that
standard in reviewing the "peer review body"
privilege). Here, however, we ultimately conclude that any
error associated with admitting the counselor's testimony
was harmless. "A harmless error analysis is based on
reviewing all pertinent portions of the record to determine
if there is little likelihood that any error affected the
verdict." State v. Jones, 296 Or.App. 553, 556,
439 P.3d 485 (2019) (internal brackets and quotation marks
omitted). We therefore summarize pertinent parts of the
record in accordance with that standard.
time of the June 2013 incident that gave rise to charges
against defendant, he and D were married and had a child, C,
who was about four years old. D testified that, on the day in
question, defendant pushed her down onto their bed as she was
changing clothes, held her face down with an arm behind her
back, and raped her. D thinks defendant may also have
penetrated her digitally; she felt penetration and thought it
was his penis. D repeatedly told defendant to stop, but he
did not. Defendant and D were fighting physically and, at
some point, D's arm "popped." D also testified
that C walked into the room and saw what was happening.
Later, friends and family of D splinted D's injured arm,
which D testified was broken. D reported the incident to law
enforcement officers several months later.
was charged with four counts: first-degree unlawful sexual
penetration (alleged as forcible digital penetration),
first-degree rape, second-degree assault (by knowingly
causing D serious physical injury), and felony fourth-degree
assault constituting domestic violence (by knowingly causing
D physical injury "and the assault was [298 Or.App. 583]
committed in the immediate presence of or witnessed by
[C]"X At trial, D testified to the facts outlined above.
During her testimony, the state played a recording of a
telephone call between D and defendant that D had recorded
some months after the incident. That call included the
"[D]: Why did you try to rape me and break my arm?
"[Defendant]: I tried to force myself on you because I
wanted to have sex with you. It's pretty obvious.
"[D]: Okay. So-
"[Defendant]: *** It's been months before I-I had
made love with you, and I wanted to have sex with my wife.
You didn't want to, so I selfishly thought I deserved it.
"[Defendant]: I was wrong. I've told that-and
I've told the counselor, I told you, I've told
everybody I was horribly wrong in doing this. I've not
once ever defended myself for trying to hurt you like that. I
was fucked up. I was not in my right mind, and I-I felt that
I deserved something that I didn't, because I didn't
see you as a person, I saw you as a possession.
"[D]: So, you think in two counseling sessions, all of
this shit's been resolved?
"[Defendant]: I know that what I did was horribly wrong.
It'll be a long time before I ever forgive myself for it.
"[D]: And you should. I mean, you did it.
"[Defendant]: I know I-I know I did it. * ...