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State v. Lachat

Court of Appeals of Oregon

July 31, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
SHAWN THOMAS LACHAT, Defendant-Appellant.

          Submitted April 24, 2018

          Crook County Circuit Court 14CR02219 Gary Lee Williams, Judge.

          Ernest 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.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Cecil A. Reniche-Smith, Assistant Attorney General, filed the brief for respondent.

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

         Case 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.

         [298 Or.App. 581] HADLOCK, P. J.

         Defendant 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.

         We 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.

         As 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.[1] 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.

         At the 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.

         Defendant 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 following exchange:

"[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.
"[D]: Okay.
"[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. * ...

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