State v. Bradley, 477 P.3d 409

Defendant (Bradley) was convicted of multiple sexual offenses against a child victim, including Counts 12 and 13 (first-degree sexual abuse based on causing the child to touch his penis and touching the child’s vagina) and Count 14 (first-degree sodomy).
The incident occurred in a confined space (converted garage) when the victim was 4–5 years old; the acts occurred in sequence over a short period and stopped only when the victim’s sister entered.
At sentencing Bradley argued Counts 12 and 13 must merge under ORS 161.067(3) because there was no sufficient pause between the repeated violations.
The trial court denied merger, relying in part on different charged body parts and on language from the consecutive-sentencing statute (ORS 137.123(5)(a)).
On appeal the court reviewed merger de novo (legal error) and the underlying factual findings for constitutional sufficiency and concluded the state failed to prove a sufficient pause between the acts.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether Counts 12 and 13 merge under ORS 161.067(3) (sufficient pause between repeated violations against same victim)	The intervening act of sodomy was a significant, qualitatively different event that created a pause allowing renunciation, so counts do not merge.	No sufficient pause existed; the sexual acts were continuous and intertwined, so merger is required.	Reversed: counts 12 and 13 must merge into a single first-degree sexual abuse conviction—state did not prove a sufficient pause.
Whether touching different body parts prevents merger	Different charged body parts show different conduct, supporting separate convictions.	Different body parts do not avoid merger if acts are continuous without a significant pause.	Rejected state’s argument: different body parts do not preclude merger under ORS 161.067(3).

State v. Nelson, 282 Or App 427 (holds sequential sexual touching of different body parts can merge where the episode is continuous and uninterrupted)
State v. West-Howell, 282 Or App 393 (concludes qualitatively different intervening conduct can create a sufficient pause permitting separate convictions)
State v. Huffman, 234 Or App 177 (defines "sufficient pause" as a temporary cessation so marked it affords opportunity to renounce intent)
State v. Glazier, 253 Or App 109 (merger required where no temporal break between assaultive acts)
State v. Dugan, 282 Or App 768 (merger where sequential touching occurred over a brief period in a confined space without interruption)
State v. Reed, 256 Or App 61 (standard of review: legal error for merger rulings; factual findings reviewed for constitutional sufficiency)