State v. Pass, 333 P.3d 1139

Victim K, age 15, was an overnight guest; defendant touched and licked her vagina and touched her breasts while she was on a couch. K resisted and defendant left.
Defendant was indicted on multiple counts; relevant here: Count 2 — second‑degree sexual abuse (deviate sexual intercourse, victim “does not consent” and “is unable to consent because she is under 18”); Count 3 — third‑degree sodomy (deviate sexual intercourse with a child under 16).
A jury convicted the defendant on both Counts 2 and 3; the defendant did not object at trial to separate convictions.
On appeal defendant argued the convictions should have merged; he sought plain‑error review because he had not preserved the merger objection.
The court treated whether the age‑based incapacity to consent is included in the “does not consent” element of second‑degree sexual abuse as dispositive, applying State v. Ofodrinwa.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether convictions for second‑degree sexual abuse (ORS 163.425(1)(a)) and third‑degree sodomy (ORS 163.385(1)) — based on the same act — may stand as separate punishments or must merge under ORS 161.067(1)	The State maintained that “does not consent” in second‑degree sexual abuse is distinct from statutory incapacity to consent based on age, so each offense requires a different element and need not merge	Defendant argued the two convictions arose from the same conduct and that the age‑based incapacity element underlying sodomy is encompassed by the “does not consent” element of second‑degree sexual abuse, so the convictions must merge	Court held that under Ofodrinwa lack of capacity due to age is included in “does not consent”; therefore the elements of the charged offenses are congruent and the third‑degree sodomy conviction merges into the second‑degree sexual abuse conviction; trial court plainly erred in entering separate convictions

State v. Ofodrinwa, 353 Or. 507, 300 P.3d 154 (Or. 2013) (held that “does not consent” in ORS 163.425 includes lack of capacity to consent due to age)
State v. Edwards, 251 Or. App. 18, 281 P.3d 675 (Or. App. 2012) (sets out merger test under ORS 161.067(1))
State v. Alvarez, 240 Or. App. 167, 246 P.3d 26 (Or. App. 2010) (explains use of indictment to identify which statutory alternative is charged for merger analysis)
State v. Crotsley, 308 Or. 272, 779 P.2d 600 (Or. 1989) (discusses element comparison for merger under statute)
State v. Cufaude, 239 Or. App. 188, 244 P.3d 382 (Or. App. 2010) (applies indictment‑based approach to alternative forms in merger analysis)