State v. Steltz, 259 Or. App. 212

Background

Defendant, an inmate, was convicted of multiple sexual offenses arising from alleged assaults on two other inmates: three counts of first-degree sodomy, one count of first-degree unlawful sexual penetration, one count of first-degree sexual abuse, and two counts of second-degree sexual abuse.
At trial the court, at the sheriff’s request, ordered defendant to wear a Remote Activated Custody Control (stun) belt; defense counsel lodged a brief, general objection but acquiesced to the belt over visible shackles.
On appeal defendant argued the stun belt violated his right to be free from physical restraints because the court deferred to the sheriff and failed to make an independent on-the-record assessment; he also argued the belt influenced his decision not to testify.
Defendant separately argued that the trial court erred by not merging Counts 6 and 7 (second-degree sexual abuse) into Counts 4 and 5 (first-degree sodomy) because the state treated Counts 6 and 7 as lesser-included, alternative theories of the same incidents.
The court held the restraint-related arguments were unpreserved (defense’s general objection was insufficient to develop the record or put the court on notice to make findings). The court found plain error as to failure to merge: the state had prosecuted Counts 6 and 7 as alternatives to Counts 4 and 5 and the trial court ordered concurrent sentences rather than merging, so the appellate court reversed and remanded to merge the paired convictions and for resentencing.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether trial court lawfully required stun belt	State: sheriffs’ risk assessment justified nonvisible restraint for courtroom safety	Defendant: court impermissibly deferred to sheriff and failed to make on‑record findings; belt violated right to be free from restraints and chilled testimony	Unpreserved on appeal; general objection insufficient to preserve specific challenges; claims rejected
Whether failure to make an on‑record independent risk assessment was erroneous	State: no preserved challenge; reliance on sheriff appropriate	Defendant: court must independently assess and record reasons before imposing restraints	Unpreserved; appellate review declined because defendant didn’t give trial court opportunity to make findings
Whether the stun belt prejudiced defendant’s decision not to testify	State: claim unpreserved and speculative	Defendant: presence of belt influenced decision not to testify	Unpreserved; not addressed on merits
Whether Counts 6 and 7 must merge into Counts 4 and 5	State: indictment charged separate episodes; evidence could support four events though state treated some counts as alternatives	Defendant: state prosecuted Counts 6 and 7 as lesser‑included alternatives to Counts 4 and 5, so convictions should merge	Held: Plain error to not merge; remanded with instructions to merge Count 6 into Count 4 and Count 7 into Count 5 and for resentencing

Key Cases Cited

State v. Wall, 252 Or. App. 435, 287 P.3d 1250 (Or. Ct. App. 2012) (trial court may order restraints only upon evidence of immediate, serious risk and must make an independent assessment on the record)
Peeples v. Lampert, 345 Or. 209, 191 P.3d 637 (Or. 2008) (preservation principle: objections must be specific enough to develop the record)
State v. Wyatt, 331 Or. 335, 15 P.3d 22 (Or. 2000) (preservation requires clarity to permit trial court to identify and correct error)
State v. Brown, 310 Or. 347, 800 P.2d 259 (Or. 1990) (plain error criteria for unpreserved claims)
Ailes v. Portland Meadows, Inc., 312 Or. 376, 823 P.2d 956 (Or. 1991) (appellate discretion to correct errors meeting plain error standards)
State v. Sanders, 189 Or. App. 107, 74 P.3d 1105 (Or. Ct. App. 2003) (merger required where one offense is lesser‑included and offenses arise from same criminal episode)
State v. Valladares‑Juarez, 219 Or. App. 561, 184 P.3d 1131 (Or. Ct. App. 2008) (consideration of criminal‑record impact when deciding to correct failure to merge convictions)