State v. Avila, 388 P.3d 383

Victim (age 11) was alone in defendant’s home when defendant showed her a CPR book, demonstrated mouth-to-mouth, and touched and kissed her vagina and breasts.
Defendant was charged with multiple offenses; the court acquitted on first-degree sodomy but convicted on two counts of first-degree sexual abuse (Count 2: vagina; Count 3: breasts).
At trial, the victim testified the two touchings occurred during the same encounter; the record contained no other evidence about timing, sequence, or any intervening events.
Defendant asked the court to merge the two sexual-abuse convictions under ORS 161.067(3) (antimerger statute) on the ground they were part of a single episode without a sufficient pause; the trial court denied the request and entered separate convictions.
On appeal, the sole contested legal issue was whether the state proved the separate violations were separated by a “sufficient pause” to permit multiple convictions under ORS 161.067(3).

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ORS 161.067(3) permits separate convictions for multiple discrete sexual-contact acts in a single encounter	ORS 161.067(3) does not apply because convictions were for contact with different body parts (not the "same conduct") and sexual acts are discrete, not a single "criminal episode"	The statute applies; multiple discrete acts against one victim in one episode can be merged unless separated by a sufficient pause	Rejected state’s categorical distinction; statute can apply to discrete sexual acts (citing State v. Nelson)
Whether the state proved a “sufficient pause” between the two sexual-abuse acts to permit separate punishments	Implied at argument that some indeterminate pause may exist between sequential acts	Record lacks any evidence of duration, sequence, or intervening event; no nonspeculative basis to infer a renunciation opportunity	Held for defendant: state failed to prove a sufficient pause; convictions must be merged into one count

State v. Davis, 265 Or. App. 425 (application of appellate review standard) (cited for legal-error standard)
State v. Reeves, 250 Or. App. 294 (antimerger general rule and ORS 161.067 framework)
State v. Nelson, 282 Or. App. 427 (statute applies to multiple discrete sexual acts; rejects state’s ‘‘same conduct’’ argument)
State v. West-Howell, 282 Or. App. 393 (state must show one crime ended before another began and a sufficient pause existed)
State v. Huffman, 234 Or. App. 177 (defines "sufficient pause" as a temporary cessation so marked that it affords opportunity to renounce intent)