359 P.3d 483
Or. Ct. App.2015Background
- Victim (17) ran away and stayed at defendant's apartment for two days after being invited; she was coerced into sexual acts by defendant and others.
- During a midday incident on the second day, defendant and three men (Skinner, Collins, Monk) undressed the victim while defendant photographed/filmed and told her to "look at the camera."
- Skinner and two other men each engaged in vaginal and oral intercourse with the victim while defendant recorded; the state charged defendant with three counts of using a child in a display of sexually explicit conduct (ORS 163.670), each alleging he knowingly permitted or induced the victim to participate for a person to observe.
- At trial defendant moved for judgment of acquittal on two counts, arguing the acts were a single episode and thus only one count could stand; the court denied the motion and convicted on all three counts.
- At sentencing defendant moved to merge the three convictions; the state argued pauses between individuals’ acts defeated merger under ORS 161.067(3); the trial court refused to merge.
- The court of appeals affirms denial of the judgment-of-acquittal motion but holds the convictions must merge into a single count because the state failed to show a sufficient pause in the defendant’s own criminal conduct to permit renunciation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Sufficiency of evidence to convict on multiple counts of using a child in a display of sexually explicit conduct | State: Defendant aided/abeted each sexual actor and permitted multiple displays (multiple observers and multiple acts) supporting three convictions | Defendant: The acts were part of a single sexual episode; evidence supports only one count | Affirmed: Viewing evidence in state's favor, separate intercourse episodes with three men could constitute multiple displays; denial of acquittal upheld |
| Whether multiple convictions must merge under ORS 161.067(3) | State: Pauses occurred each time a different participant changed positions, affording opportunity to renounce intent, so counts do not merge | Defendant: Pause must be in defendant’s conduct; his conduct (permitting/controlling) never paused, so convictions must merge | Reversed: State failed to prove a sufficient pause in defendant’s own criminal conduct; convictions must merge into one for sentencing |
Key Cases Cited
- State v. Graham, 251 Or App 217 (2012) (standard for reviewing denial of judgment of acquittal)
- State v. Reeves, 250 Or App 294 (2012) (standard of review for merger decisions)
- State v. Watkins, 236 Or App 339 (2010) (burden on the state to show separate assaults did not merge)
- State v. Cale, 263 Or App 635 (2014) (merger error where evidence failed to show pause in defendant’s conduct)