and Submitted May 22, 2018
Clackamas County Circuit Court 15CR57216, Jeffrey S. Jones,
W. Kelly argued the cause and fled the brief for appellant.
Rios, Assistant Attorney General, argued the cause for
respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
DeHoog, Presiding Judge, and Aoyagi, Judge, and Hadlock,
Judge pro tempore.
appeals a judgment convicting him of nine offenses, six of
which are at issue on appeal. Defendant argues that the trial
court plainly erred by failing to merge his guilty verdicts
for compelling prostitution, promoting prostitution, and
traffcking in persons into a single conviction and by failing
to merge his guilty verdicts for unauthorized use of a
vehicle, theft in the second degree, and robbery in the third
degree into a single conviction. The state contends that the
court did not err under the merger statute and,
alternatively, that any potential error is not plain.
Held: The trial court did not err. It is not beyond
dispute that the court was required to merge defendant's
guilty verdicts as he contends; accordingly, any error by the
court was not plain error.
Or.App. 75]DEHOOG, J.
appeals a judgment convicting him of nine offenses. Six of
those convictions are at issue on appeal: Count 1 (compelling
prostitution, ORS 167.017(1)(a)); Count 2 (promoting
prostitution, ORS 167.012(1)(b)); Count 3 (trafficking in
persons, ORS 163.266(1)(b)); Count 4 (unauthorized use of a
vehicle, ORS 164.135 (2015), amended by Or Laws
2019, ch 530, § 1); Count 8 (third-degree robbery, ORS
164.395(1)(a)); and Count 9 (second-degree theft, ORS
164.045(1)(b)). Defendant raises two assignments of error. In
his second assignment of error, defendant contends that the
trial court committed plain error by failing to merge (1) the
jury's verdicts of guilty on Counts 1, 2, and 3 into a
single conviction; and (2) the jury's guilty verdicts on
Counts 4, 8, and 9 into a single conviction. The state
contends that merger is not appropriate, because each of the
counts on which defendant was convicted required proof of an
element that the others did not. In the alternative, the
state responds that neither error asserted under this
assignment is sufficiently obvious from the record so as to
be plain. For the reasons that follow, we conclude that, to
the extent that the trial court may have committed error with
respect to defendant's merger arguments, any such error
is not sufficiently obvious so as to constitute plain error.
Accordingly, we reject defendant's second assignment of
error and affirm.
review a trial court's merger rulings for legal error.
State v. Dearmitt, 299 Or.App. 22, 24, 448 P.3d 1163
(2019). We state the facts underlying those rulings in the
"light most favorable to the state; that is, in the
light most [301 Or.App. 76] favorable to the trial
court's conclusion that merger was not required."
and the victim, who at the time was defendant's
girlfriend, began their relationship in 2011, when they lived
in the Portland area. During that relationship, the two also
lived together in Sacramento, California, where at least one
instance of domestic violence occurred. Defendant was the
father of the victim's youngest child. Over the course of
their relationship, the victim would, at times, use an online
forum, backpage.com, to "post" her
availability for escort services. Shortly before the events
in this case, the couple lived in Sacramento. Wanting to
return home and be near family, because defendant had been
abusive and had "pimped her out," the victim drove
to Portland with her children, leaving defendant behind.
Defendant, however, eventually joined the victim in Portland
after demanding that she purchase an airline ticket for him.
The day after his arrival, defendant told the victim that
they were going to drive the children to a family
member's house so that the victim could post her
availability online. As the two were returning to their motel
after having dropped the children off, defendant noticed that
the victim was not using her cellphone to post her
availability, as defendant expected her to do. Defendant
reacted by grabbing the victim by the hair and telling her to
"[F]ucking post, bitch." In response, the victim
posted an advertisement for "dates" on backpage,
com. Later the same day, a man who had responded to the
victim's listing showed up at the couple's motel room
as he had arranged with the victim. However, when he arrived
the victim told him that she no longer wanted to go through
with the date, because she was being forced to do it. The man
did not press the issue and, upon leaving sometime later,
gave the victim $100. After the man had gone, defendant
re-entered the couple's motel room and angrily confronted
the victim about how long the "date" had taken. He
put his hand around the victim's throat and squeezed for
about four seconds, only stopping when she pointed to the
$100 that the man had left on a table. Defendant took the
money; he also took the victim's car keys and an
additional $500 that he found in her purse, neither of which
the victim had said he could take. After defendant drove off
in the victim's car, [301 Or.App. 77] she contacted the
police. A jury subsequently found defendant guilty of all of
the charges arising from those events, including the six at
issue on appeal (compelling prostitution, promoting
prostitution, trafficking in persons, unauthorized use of a
vehicle, robbery in the third degree, and theft in the second
degree). The trial court then entered separate convictions on
all nine counts, and imposed a separate sentence on each
proceed with defendant's argument that the trial court
plainly erred in not merging six of the nine counts in
various ways. Generally, "[n]o matter claimed as error
will be considered on appeal unless the claim of error was
preserved in the lower court." ORAP 5.45(1). That being
said, we may exercise our discretion to review an unpreserved
error, so long as it is a plain error. Id. "To
qualify as plain error, an asserted error must be (1) one of
law; (2) it must be apparent, i.e., the point must
be obvious, not reasonably in dispute; and (3) it must appear
on the face of the record[.]" State v. Serrano,
355 Or. 172, 179, 324 P.3d 1274 (2014) (internal quotation
marks omitted). An error is apparent on the face of the
record if we do "not need to go outside the record to
identify the error or choose between competing inferences,
and the facts constituting the error [are] irrefutable."
Id. (internal quotation marks omitted). With those
standards in mind, we turn to defendant's contention that
the trial court plainly erred.
is governed by ORS 161.067, which requires that a court merge
multiple guilty verdicts that arise out of the same conduct
or criminal episode, except under certain circumstances.
State v. Gensitskiy,365 Or. 263, 281, 446 P.3d 26
(2019). ORS 161.067 effectively creates a presumption that
multiple statutory violations based on the same conduct or
criminal episode will result in only one conviction; it
establishes, however, certain circumstances that bar merger,
and if they exist, the sentencing court must enter a separate
conviction for each count on which the defendant has been
found guilty. Id. at 281, 281 n 5. As relevant here,
when the criminal conduct or ...