Defendant appeals the trial court’s judgment convicting him of three counts of sexual abuse in the first degree (Counts 1, 2, and 4), ORS 163.427, and one count of unlawful sexual penetration in the second degrеe (Count 3), ORS 163.408. On appeal, defendant assigns error to the trial court’s entry of separate convictions for two of the sexual abuse in the first degree counts, Counts 1 and 2; he contends that thе trial court should
First-degree sexual abuse is defined by ORS 163.427, which provides, in pertinent part:
“(1) A person commits the crime of sexual abuse in the first degree when that person:
“(a) Subjects another person to sexual contact and:
“(A) The victim is less than 14 years of age;
“(B) The victim is subjected to forcible compulsion by the actor; or
“(C) The victim is incapable of consent by reason of being mentally defective, mentally incapacitated or physically helpless [.]”
In this case, Count 1 of the indictment alleged that defendant committed first-degree sexual abuse by touching the breasts of the victim, “a child under 14 years of age[.]” Thus, Count 1 alleged that defendant violated ORS 163.427(l)(a)(A). Count 2 alleged that defendant committed first-degree sexual abuse by touching the breasts of the same victim, “a person who was physiсally helpless [.]” Thus, Count 2 alleged that defendant violated ORS 163.427(l)(a)(C).
Defendant pleaded guilty to all four charged counts and, at sentencing, asserted that the court was required to merge Counts 1 аnd 2. He explained:
“If you look at the allegations themselves, it’s exactly the same statute. It’s the same conduct alleged. It’s the same victim. There’s really just two different theories of the sаme offense. I believe under those circumstances, the law is clear that they merge.”
In response, the state agreed that Counts 1 and 2 were for the same act, but argued that the counts did not merge because they were based on “separate legal theories.” The state explained that Counts 1 and 2 were based on a single incident in which the victim “recalled onе day waking up with the defendant’s hand down her shirt, fondling her breasts under her bra. Those are—that act is—is reflected in Counts 1 and 2 in this case.” (Emphasis added.) Later, when describing the acts underlying the counts, the state reiterated that Counts 1 and 2 were based on the same act, explaining, “[W]e think that these are indeed separate acts between Counts 1 and 2, and Count 3 and Count 4. So, to be clear, Counts 1 and 2 go together. Count 3 is a separаte— is a separate incident. Count 4 is a separate incident.” Nevertheless, the state argued that Count 1 and Count 2 did not merge, on the ground that the counts were based on “separate legal theories” and contained “separate elements.”
The trial court ruled that Count 1 and Count 2 did not merge, stating that “Counts 1 and 2 are separate acts, as I understood the facts, thаt are—were placed on the record to support the plea initially, and that are recounted—in summary fashion in the evaluation and [presentence investigation repоrt (PSI)] that was provided to me.”
The trial court imposed 75-month prison terms on each of the four counts and made the sentence on Count 3 consecutive to that on Count 1. The court also imposed unitary assessments on each of the four counts.
We are bound by the trial court’s findings “if there is constitutionally sufficient evidence in the record to support those findings,” State v. Ehly,
Merger is governed by ORS 161.067.
Here, the state argued that the verdicts on Counts 1 and 2 did not merge because the counts involved separate legal theories and separate elements. To thе extent that the state was arguing that the verdicts on the counts did not merge because they were for violations of separate “statutory provisions,” the state’s argument was incorreсt. Although defendant was charged with violating different subparagraphs of ORS 163.427(l)(a)—specifically, ORS 163.427(l)(a)(A) and (C)—those subparagraphs are not separate “statutory provisions” for merger purрoses, as the state now acknowledges.
Whether different sections, paragraphs, or subparagraphs of a statute defining a crime constitute separate “statutory provisions” is a question of legislative intent to be resolved by determining whether the legislature intended to define one crime or more than one crime. State v. White,
It appears that the trial court may have refused to merge defendant’s guilty verdicts on the ground that they were based on separate acts. But, as the state concedes, if the trial court found that the counts were based on separatе acts, there is no evidence in the record to support that finding. As the state observes, “defendant is correct that the only information that was provided to the court in defendant’s plea petition and at the change-of-plea hearing was that counts 1 and 2 were based on the same incident and act—that they were not based on separate incidents.” The trial court may have believed, based on an allegation in the PSI, that defendant had
Reversed and remanded with instructions to merge the guilty verdicts on Counts 1 and 2 into a single conviction for sexual abusе in the first degree; remanded for resentencing; otherwise affirmed.
Notes
Because we remand for resentencing, we do not address defendant’s assignment of error regarding the trial court’s imposition of court-appointed attorney fees.
ORS 161.067 provides, in part:
“(1) When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proоf of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.
“(2) When the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims. ***
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“(3) When the samе conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involves repeated violations of the same statutory provision against the same victim, there are as many separately punishable offenses as there are violations, except that each violation, to be separately punishable under this subsection, must be separated from other such violations by a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent. Each method of engaging in deviate sexual intercourse as defined in ORS 163.305, and each method of engaging in unlawful sexual penetration as defined in ORS 163.408 and 163.411 shall constitute separate violations of their respective statutory provisions for purposes of determining the number of statutory violations.”