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State v. Tajipour

Court of Appeals of Oregon

September 5, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
HOSSEIN TAJIPOUR, Defendant-Appellant.

          Argued and submitted August 23, 2018

          Multnomah County Circuit Court 15CR26096; Michael A. Greenlick, Judge.

          Ryan T. O'Connor argued the cause for appellant. Also on the briefs was O'Connor Weber LLC.

          Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Hadlock, Presiding Judge, and DeHoog, Judge, and Schuman, Senior Judge.

         Case Summary:

         Defendant appeals a judgment reflecting convictions for one count of first-degree sodomy (Count 1), three counts of first-degree sexual abuse (Counts 3, 5, and 7), and one count of coercion (Count 9). Defendant challenges the trial court's imposition of partly consecutive sentences on his convictions for sodomy and two of the counts of sexual abuse (Counts 3 and 5), arguing that consecutive sentences were not authorized under either ORS 137.123(a) or (b). Held: The trial court did not err. First, the record contains sufficient evidence that the harms associated with Count 5 were greater than or qualitatively different from the harms caused or threatened by Count 3. ORS 137.123(b). Second, the record allows an inference that defendant's conduct in Counts 3 and 5 was not merely incidental to the conduct that formed the basis for Count 1. ORS 137.123(a).

         Affirmed.

         [299 Or.App. 220] HADLOCK, P. J.

         Defendant appeals a judgment reflecting convictions for one count of first-degree sodomy (Count 1), three counts of first-degree sexual abuse (Counts 3, 5, and 7), and one count of coercion (Count 9). Defendant raises eleven assignments of error on appeal. We write only to address defendant's fourth and fifth assignments of error, in which defendant challenges the trial court's imposition of partly consecutive sentences on his convictions for sodomy and two of the counts of sexual abuse. For the reasons set out below, we conclude that the trial court did not err in imposing those partly consecutive sentences. We reject the remainder of defendant's assignments of error without extended discussion.[1] Accordingly, we affirm.

         I. HISTORICAL AND PROCEDURAL FACTS

         We describe defendant's criminal activity to provide context for those facts that are significant to the sentencing issues that we address in this opinion. We outline the pertinent facts in the light most favorable to the state. State v. Kuester, 275 Or.App. 414, 415, 364 P.3d 685 (2015).

         On an evening in February 2015, A, who was then a student at the University of Portland, attended a party near the university and drank multiple alcoholic beverages to the point that she felt "really drunk." A decided to leave the [299 Or.App. 221] party by herself and find her way home. As she was walking through the neighborhood, she started to feel more drunk and blacked out; later, when she became "more cognizant," she found herself in a neighborhood with which she was not familiar. It was about 2:00 a.m., cold outside, and A could not call anybody because her phone battery was dead. After walking some more, A spotted a taxi, flagged it down, and got in.

         By this point, it was 3:37 in the morning.[2] A gave her address to defendant, who was the cab driver, and told him that her house was near the University of Portland. Shortly after the ride began, defendant stopped the cab and asked A if she would like to get into the front seat, where the heaters worked better. Defendant also said that he could not find As address. A got into the front seat of the cab at about 3:49. Defendant started driving away from the university, which A found "really odd." Within 30 seconds of when A got into the front seat, defendant reached toward her. Defendant grabbed As hand; she initially thought he had noticed that she was cold and was trying to keep her hand warm. After that, defendant put his hand on As knee and moved it up her thigh. A started to panic, tried to push defendant's hand away, and turned her body away from him. At some point, defendant put his hands down As pants, touching her labia, and-"when his hand was near [As] vaginal area"-said something to the effect that "this is what you need to do in order to go home." Defendant also touched As breasts, both over and underneath her shirt.

         A specifically remembers the moment that defendant touched her breasts and the moment that he touched her vaginal area. Those memories "are going to be burned in [her] mind for-forever." However, A does not recall the order in which defendant touched those parts of her body during the cab ride, as remembering the order "wasn't a priority" for her. Rather, she was thinking about "do[ing] whatever it took to make sure that [she] was safe and make sure that [she] wasn't in a ditch somewhere" and "would make it home [299 Or.App. 222] safely." A felt "so scared and so violated." She just wanted to go home safely and she "thought that's like what taxis were for." At one point, defendant asked her if she liked the ...


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