Submitted August 14, 2018.
Washington County Circuit Court C160327CR; Rick Knapp, Senior
Judge., D. Charles Bailey, Jr., Judge.
Wilner-Nugent fled the brief for appellant. Joshua Shane
Harmon fled the supplemental and reply briefs pro se.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Rebecca M. Auten, Assistant Attorney General,
fled the brief for respondent.
Ortega, Presiding Judge, and Egan, Chief Judge, and Powers,
Or.App. 802]PER CURIAM
appeals from a judgment of conviction for two counts of
first-degree unlawful sexual penetration (Counts 1 and 4) and
six counts of first-degree sexual abuse (Counts 2, 3, 5, 6,
7, and 8). We write to address defendant's two
assignments of error arguing that the trial court plainly
erred in failing to merge the guilty verdicts on Counts 2 and
3 and on Counts 5 and 6. We reject defendant's pro
se assignments of error without discussion.
first assignment of error, defendant argues that the trial
court plainly erred by failing to merge the guilty verdicts
on Counts 2 and 3 into a single conviction of first-degree
sexual abuse. In his second assignment of error, defendant
argues that the trial court plainly erred by failing to merge
the guilty verdicts on Counts 5 and 6 into a single
conviction of first-degree sexual abuse. Defendant argues
with regard to both assignments of error that those counts
should have merged because the facts underlying those counts
constituted a single, uninterrupted course of conduct against
a single victim. ORS 161.067(3). Defendant acknowledges that
he did not preserve his assignments of error, but requests
that we review and correct the error as plain error. ORAP
state concedes that the trial court plainly erred by failing
to merge Counts 2 and 3. We agree with and accept the
state's concession. We further conclude that it is
appropriate to exercise our discretion to correct the plain
error for the reasons stated in State v.
Camacho-Alvarez, 225 Or.App. 215, 217, 200 P.3d 613
regard to Counts 5 and 6, the state responds that the trial
court did not plainly err because there is [298 Or.App. 803]
evidence in the record from which the trial court could have
found a "sufficient pause" between the conduct
underlying those two counts to justify separate convictions
under ORS 161.067(3). See State v. Nelson, 282
Or.App. 427, 444-47, 386 P.3d 73 (2016) (discussing what
constitutes a "sufficient pause"). We agree that
any error with regard to the trial court's failure to
merge the guilty verdicts on Counts 5 and 6 does not qualify
as plain error under ORAP 5.45(1) for the reason articulated
by the state. See State v. Jury, 185 Or.App. 132,
135, 57 P.3d 970 (2002), rev den, 335 Or. 504 (2003)
(setting out the three criteria for plain error).
Accordingly, we affirm defendant's convictions on Counts
5 and 6.
on Counts 2 and 3 reversed and remanded for entry of judgment
of conviction for one count of first-degree sexual abuse;
remanded for resentencing; otherwise affirmed.
 ORS 161.067(3) provides, in