In this criminal case, defendant challenges his conviction on Counts 1 and 2 — arising from a violent episode during which he shot a victim multiple times with a BB gun — and raises several assignments of error. We reject without published discussion all of defendant’s assignments of error except his challenge to the trial court’s merger ruling, which resulted in separate convictions for two counts of second-degree assault, ORS 163.175. He argues that his guilty verdicts on those counts should have merged into a single conviction because there was no evidence of a sufficient pause for defendant to renounce his criminal intent, as required by the “anti-merger” statute, ORS 161.067(3).
We review for legal error and are bound by the trial court’s factual findings, provided there is sufficient evidence in the record to support them. State v. Cale,
The victim drove to the parking lot and waited, as she had many times in the past. Defendant arrived, got into the victim’s truck, and sat next to her in the front passenger seat. He immediately began questioning her about whether she had removed
Defendant was charged with two counts of second-degree assault, ORS 163.175, one count of coercion, ORS 163.275, one count of fourth-degree assault, ORS 163.160, one count of unlawful use of a weapon, ORS 166.220, and one count of tampering with a witness, ORS 162.285. At defendant’s bench trial, the victim testified to those facts and recapped that she had been shot “in the head, then [her] hand, and then twice in [her] leg.” She remembered that, at some point, defendant had used a closed fist to strike her three or four times in the side of her face. During closing arguments, defense counsel argued, among other things, that “Count 2 should merge into Count 1” because “this clearly is one continuous criminal episode” and there was “no pause for reflection.” The trial court did not respond to that argument and convicted defendant on all counts. At sentencing, the state argued that the victim tried to escape from the truck before being shot in the leg, and that that action was “sufficient time in this criminal episode to stop and pause and reflect.” The state requested that the trial court make “additional findings that Count 2 is a separate criminal episode, also resulting in qualitatively different harm, than in Count 1.” The trial court did not make such findings for the purpose of merger and did not merge any guilty verdicts. On appeal, defendant argues that ORS 161.067(3) required the trial court to merge the verdicts on Counts 1 and 2 into a single conviction.
We must briefly consider the state’s contention that the matter is not preserved. This court has concluded that, where both parties make “brief statements on their legal positions as to merger” and where the trial court considered merger to be an issue, preservation requirements are deemed satisfied. State v. King,
In this case, defendant raised the issue of merger with regard to Counts 1 and 2 by making short-hand references to the statutory requirement that there be a “sufficient pause in defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent.” ORS 161.067(3); see King,
On facts like these, our anti-merger statute requires that, in order to be separately punishable, each violation “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.”
This court has held that merger of second-degree assault is proper where a defendant’s conduct is “continuous and uninterrupted” and where “there was no evidence that [the defendant] paused his aggression[.]” Glazier,
As another illustration, in State v. Bryan,
The same conclusion must follow here. The record does not contain sufficient evidence for a reasonable fact-finder to determine that one assault ended before another had begun. The victim’s testimony only revealed that defendant shot her multiple times with a BB gun and that she made an unsuccessful attempt to escape at some point during the violent episode. The record contains no evidence that defendant’s conduct was interrupted by a “significant” event or intervening party. Cf. King,
Convictions on Counts 1 and 2 reversed and remanded with instructions to enter a judgment of conviction for one count of assault in the second degree and for resentencing; otherwise affirmed.
Notes
ORS 161.067(3) provides, in part:
“When the same 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.”
The relationship is evidenced throughout the record in this case, including the victim’s testimony that defendant was her “pimp boyfriend” similar to depictions “on TV,” that she could not “sit up around him without * * * money,” and that they had a history of breaking up and getting back together. Scholars have discussed social identities of pimps, including the “violent boyfriend-pimp,” the category for which there is the most data. That identity category reflects an emotional relationship between a pimp and prostitute that is accompanied by cyclical patterns of abuse. See Jacqueline B. Helfgott, Criminal Behavior: Theories, Typologies and Criminal Justice 301 (2008).
On appeal, the parties do not dispute that defendant’s assault of the victim occurred on a single occasion or assert that more than one statutory provision or victim is involved, as required for the “anti-merger” statute to apply. ORS 161.067(3).