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State v. Dearmitt

Court of Appeals of Oregon

August 14, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
STEVEN CLYDE DEARMITT, Defendant-Appellant.

          Argued and submitted September 26, 2017.

          Clackamas County Circuit Court CR1401357; Heather Karabeika, Judge.

          Kenneth A. Kreuscher argued the cause and fled the opening brief for appellant. Steven DeArmitt fled the supplemental brief pro se.

          Timothy A. Sylwester, Assistant Attorney General, argued the cause for appellant. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

         Case Summary: Defendant appeals a judgment of conviction entered upon his plea of guilty to four counts of sexual abuse in the second degree, ORS 163.425(1) (a), all of which he committed against the same victim. Defendant assigns error to the trial court's failure to merge two of those counts-Counts 4 and 6-into a single conviction. Held: The trial court erred in failing to merge its findings of guilt as to Counts 4 and 6.

         [299 Or.App. 23] DEHOOG, P. J.

         Defendant appeals a judgment of conviction entered upon his plea of guilty to four counts of sexual abuse in the second degree, ORS 163.425(1)(a), all of which he committed against the same victim.[1] In his opening brief, defendant assigns error to the trial court's failure to merge two of those counts-Counts 4 and 6-into a single conviction, as well as the court's determination that each of the four counts were level "7" offenses on the sentencing guidelines' crime seriousness scale. In a supplemental brief filed on his own behalf, defendant assigns error to three additional rulings: the trial court's denial of his motion to suppress, its imposition of upward departure sentences, and its calculation of defendant's criminal history score. Writing only to address defendant's first assignment of error, we conclude that the trial court erred in failing to merge its findings of guilt as to Counts 4 and 6. That error requires us to remand the entire case for resentencing; as a result, it is unnecessary for us to address defendant's second assignment of error- regarding the classification of his offenses at crime seriousness level 7-or his pro se assignments regarding sentencing, because the court will have an opportunity, to the extent it may be appropriate, to address those issues anew upon resentencing.[2]

         As noted, defendant's first assignment of error contends that the trial court erred in failing to merge its findings of guilt as to two counts of sexual abuse in the second degree, Counts 4 and 6 of the indictment. In defendant's view, ORS 161.067(3) required the court to merge those two counts and enter a single conviction because they resulted from multiple violations of the same statutory provision and occurred in a single criminal episode. Citing the same statute, the state responds that the trial court properly entered separate convictions because Counts 4 and 6 involved different "methods" of committing second-degree sexual abuse. We conclude that, because the record reflects that Counts 4 and 6 were (1) committed against the same victim during a [299 Or.App. 24] single criminal episode; (2) violated only one statutory provision; and (3) were not separated by a sufficient pause to afford the defendant an opportunity to renounce his criminal intent, ORS 161.067(3) required the court to merge those counts and enter a single conviction for second-degree sexual abuse. We therefore agree with defendant that the trial court erred in not merging those counts.

         A detailed discussion of the facts underlying defendant's convictions is unnecessary to frame the legal issue this case presents. We note, however, that we generally are bound by a sentencing court's findings of fact if there is constitutionally sufficient evidence in the record to support them, and we review the court's resulting merger ruling for legal error. State v. Black, 270 Or.App. 501, 504-05, 348 P.3d 1154 (2015). Furthermore, we state the facts underlying that ruling in the light most favorable to the state; that is, in the light most favorable to the trial court's conclusion that merger was not required. State v. Loving, 290 Or.App. 805, 807, 417 P.3d 470 (2018).

         It is undisputed that defendant's plea of guilty to four counts of second-degree sexual abuse was based on conduct comprising three separate criminal episodes. All four counts involved the same victim, who was 13 or 14 years old when the crimes occurred. Count 1 occurred at an apartment complex, where defendant touched the victim and digitally penetrated her vagina. Count 2 occurred at a motel, where defendant again touched and digitally penetrated the victim's vagina. Counts 4 and 6 occurred at the home of defendant's father, where defendant subjected the victim to sexual intercourse without her consent (Count 4), and penetrated her anus with his finger (Count 6).

         At the plea hearing, the parties agreed that defendant's conduct comprised three criminal episodes, with Counts 1 and 2 each arising out of its own criminal episode, and Counts 4 and 6 both arising out of a third, separate and distinct criminal episode. Defendant argued that, because Counts 4 and 6 arose out of the same criminal episode, the court was required to merge its determinations of guilt on those two counts. The state responded that, although Counts 4 and 6 were part of the same criminal episode, those counts [299 Or.App. 25] should not merge because each had caused the victim separate harm stemming from different conduct within that episode. The parties continued to argue the issue at sentencing. The state reasoned that the distinct conduct underlying Counts 4 and 6-digitally penetrating the victim's anus and engaging in sexual intercourse-demonstrated intent to commit two distinct criminal acts. Thus, although the state acknowledged that both acts constituted the same offense- second-degree sexual abuse-it argued that the two acts should "stand on their own" because they were "not in any way similar or the same conduct" and caused a "separate harm."

         The trial court agreed with the state and declined to merge Counts 4 and 6, explaining to defendant:

"There's also been a stipulation that there are at least three criminal episodes represented in the charges you pled guilty to, but they disagree on whether the fourth and sixth count merge. The District Attorney's Office has pointed out that, in his mind, these offenses have separate harms because they involve separate body parts, but they essentially fall under the same statute, Sex Abuse in the Second Degree. They are pled separately, however, and talk about different body parts, and ...

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