STATE OF OREGON, Plaintiff-Respondent, v. JIHAD ELDEEN MOORE, aka Jihad Eldeen Moore, Jr., Defendant-Appellant.
Multnomah County Circuit Court 18CR13996; A169841
Court of Appeals of Oregon
Submitted October 20, 2020; April 20, 2022
petition for review denied October 6, 2022 (370 Or 303)
319 Or App 136; 510 P3d 907
Thomas M. Ryan, Judge.
Before James, Presiding Judge, and Lagesen, Chief Judge, and Kamins, Judge.
Defendant appeals from a judgment of conviction for two counts of first-degree rape and one count of first-degree sodomy. He assigns error to (1) the trial court‘s denial of a motion to dismiss because the statute of limitations for his offenses had expired, (2) the trial court‘s denial of a motion to suppress inculpatory statements to police because they were involuntary, and (3) the trial court‘s failure to merge the verdicts on the two counts of first-degree rape into a single conviction because there was no “sufficient pause” in criminal conduct as required by
Convictions on Counts 1 and 2 reversed and remanded for entry of judgment of conviction for one count of first-degree rape; remanded for resentencing; otherwise affirmed.
Thomas M. Ryan, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Meredith Allen, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the brief for respondent.
JAMES, P. J.
Convictions on Counts 1 and 2 reversed and remanded for entry of judgment of conviction for one count of first-degree rape; remanded for resentencing; otherwise affirmed.
Defendant appeals from a judgment of conviction for two counts of first-degree rape (Counts 1 and 2),
In November 2017, Portland police detectives identified defendant as a suspect in a 1996 sexual assault by testing the “rape kit” that was collected when the victim went to the emergency room after the attack. Defendant‘s DNA profile matched the DNA profile found in the collected evidence, and based on that evidence, the state charged defendant. At trial, the victim testified that in 1996 defendant had invited her to share drugs with him. He took her to a secluded place, but then strangled her to the point where she lost consciousness. When she awoke, defendant was raping her. After the victim regained consciousness, defendant forced her to perform oral sex. He also threatened her with a firearm and robbed her. After the attack, the victim sought medical help and contacted police, who initiated the investigation that ultimately led to the arrest of defendant decades later.
Defendant‘s first assignment of error concerns the statute of limitations. There are three limitations periods at issue because of the gap between the assault in 1996 and the testing of the rape kit in 2017. At the time of the charged incident in 1996, the applicable limitations period was six years.
Defendant argues on appeal, as he did at trial, that because the legislature did not expressly make the 2001 amendment to the limitations period retroactive, the limitations period for the 1996 assault expired six years after the date of the offenses and could not later be revived by operation of the 2007 amendments—which extended the statute of limitations to 25 years—without violating the constitutional prohibition against ex post facto laws. As defendant argues, “[w]hen the legislature wants to make a statute of limitations extension apply retroactively, it has said so explicitly.” Defendant contrasts the 2007 amendments, Or Laws 2007, ch 840, § 2, which increased the limitations period to 25 years and included a retroactivity clause, with the legislative silence in the 2001 amendment.
The state responds that when the legislature extended the statute of limitations period in 2001 from six to 12 years for the crimes of rape and first- or second-degree sodomy, it intended for the change to apply retroactively to pertinent offenses that were still within the six-year limitations period. Under the statutory interpretation framework set out in State v. Gaines, 346 Or 160, 206 P3d 1042 (2009), the state argues that the statute‘s text in context and legislative history show that the legislature extended the limitations period to address the problem of unresolved sexual assault cases that had DNA evidence that were running up against the original six-year limitations period. Furthermore, the state argues that there is no prohibition on retroactivity set out in the plain language of the amended statute‘s text, Or Laws 2001, ch 375, § 1. The state argues that, under our case law, “[i]n both civil and criminal contexts, enlarged Statutes of Limitations have applied retroactively, but only for claims that were not yet barred by the
We review a trial court‘s interpretation of a statute as a question of law. Gaines, 346 Or at 171-72; Rhodes v. Eckelman, 302 Or 245, 248, 728 P2d 527 (1986) (“In determining the effect to be given to a statute—whether denominated ‘prospective,’ ‘retroactive’ or something else—the function of the court is to ‘discern and declare’ the intent of the legislature.“). Our interpretation of a statute is governed by the three-part test set out in Gaines, 346 Or at 171-72. The first and most important step is an examination of the text and context. That is followed by a consideration of the legislative history if it is useful for our analysis, and we must determine its “evaluative weight.” Id. If the legislature‘s intent remains unclear after examining text, context, and legislative history, we may resort to general maxims of statutory construction to aid in resolving the remaining uncertainty. Id. at 172.
We begin with the statute at issue, which is the 2001 amendment to
“(8) Notwithstanding subsection (2) of this section, a prosecution for rape in the first or second degree or sodomy in the first or second degree may be commenced within 12 years after the commission of the crime if the defendant is identified after the period described in subsection (2) of this section on the basis of DNA (deoxyribonucleic acid) sample comparisons.”
Except for the provision in subsection (8) to extend the limitations period to 12 years if the defendant is identified on the basis of DNA, the legislature maintained the six-year limitations period set out in subsection (2).
The text of
As we have noted, “[i]n both civil and criminal contexts, enlarged Statutes of Limitations have applied retroactively, but only for claims that were not yet barred by the previous limitation.” Ritcherson, 131 Or App at 187 (citations omitted). In Dufort, we held that the extension of the limitations period for the criminal statute at issue did not violate the ex post facto provisions in either the state or federal constitutions because “[a]n extension of a limitation does not punish acts that were legal at the time they occurred or impose a greater punishment.” 111 Or App at 520. Furthermore, we concluded that, even though the legislature had not expressly made the increased limitations period retroactive, it was “consistent with the purpose of [the] legislative change” to conclude that the amended limitations period “applie[d] to incidents of sexual abuse that had not yet been barred under the previous statute.” Id. at 519.
We reach a similar conclusion in this case in light of the legislative history of the 2001 amendment. The amendment to
Moreover, Tom Dixon, the director of the state‘s forensic services division, testified in support of the bill; he explained that hundreds of unsolved rapes occurred each year and that there were over 5,000 unsolved rapes that had been committed in Oregon in the past six years. Dixon remarked that the statute of limitations was about to run before the offenders could be found, and he cited examples of sexual assaults from 1996 and 1997 that had recently been solved because of developments in DNA technology. Representative Lowe expressed concern about proving the chain of custody for DNA evidence if the limitations period were to be increased to 20 years. The bill that passed reduced the proposed 20-year limitations period to a 12-year period.
Considering that clear legislative history, we conclude that the amendments were intended to extend the limitations period in the case of incidents of sexual abuse that had not yet been barred under the previous statute. The legislature sought to maintain the viability of DNA evidence for criminal prosecutions where the existing six-year limitations period would preclude the use of inculpatory evidence that was languishing in the state‘s custody. The amendments to
The parties agree that if the limitations period was lawfully extended by the 2001 amendment, the 2007 amendment that extended the limitations period to 25-years would apply to defendant, thus making that 25-year period the applicable limitations period. Given that defendant was
In defendant‘s third assignment of error, he claims that the trial court erred by failing to merge the guilty verdicts on two counts of first-degree rape, Counts 1 and 2, into a single conviction, arguing that they are based on the same conduct and charged under the same statutory provision. Defendant contends that there was not a “sufficient pause,”
At trial, the victim testified about the circumstances of the assault:
“[WITNESS:] We were sitting side by side.
“[PROSECUTOR:] And what happened next?
“[WITNESS:] I looked over at him and he looked at me and he grabbed me around the throat and started strangling me. And I tried to run and then I went and passed out.
“[PROSECUTOR:] Do you remember how long you were passed out for?
“[WITNESS:] I don‘t know.
“[PROSECUTOR:] What‘s the next memory that you have?
“[WITNESS:] I just remember hearing dripping and feeling dripping and—what is that? And I realized that it was blood coming out of my nose. And then I realized that he was behind me, having sex with me. And so I tried to get into a runner‘s position so that I could run away. And, at that point, he realized that I was awake and so he flipped me over and made me give him oral sex. And then he was done and some point—I don‘t know if it was when he was—when I was giving him oral sex, if he told me he had a gun or if it was when he was taking my jewelry, my watch and my rings, then he told me he had a gun and so then he robbed me.”
At sentencing, the prosecutor argued that, “[a]s the facts came out at trial, the defendant began raping the victim while she was physically helpless because he had rendered her unconscious by choking her. And then [upon the victim regaining consciousness he] continued holding her down as she tried to get away.” In response, the trial court determined that, “[w]ith respect to the request to merge Counts 1 and 2, that request is denied. There was sufficient pause to reflect and consider. The defendant continued to engage in the rape following those pauses or—and over—across that period of time.”
On appeal, the state concedes that this is a “close case” but maintains that the record supported the trial court‘s factual determination that there was a “sufficient pause” providing defendant time to renounce his criminal intent. The state asserts, “Collectively, the evidence supports a finding that defendant thus committed two qualitatively different rapes: the first was the rape of a victim who [was] incapacitated: when defendant strangled the victim and penetrated her while she was unconscious. Then, immediately after the victim regained consciousness, a second qualitatively different rape occurred a violent rape committed through forcible compulsion.” The state continues, “The awakening of [the] victim in this case was a transformative intervening event *** [that] afforded defendant an opportunity to stop and renounce his intent.”
We review the trial court‘s ruling on whether to merge the guilty verdicts for legal error and are bound by the trial court‘s factual findings if there is constitutionally sufficient evidence in the record to support them. State v. Bradley, 307 Or App 374, 379, 477 P3d 409
“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. Each method of engaging in oral or anal sexual intercourse as defined in
ORS 163.305 , and each method of engaging in unlawful sexual penetration as defined inORS 163.408 and163.411 shall constitute separate violations of their respective statutory provisions for purposes of determining the number of statutory violations.”
As we explained in Bradley, under
In Bradley, the defendant contested entry of two separate sexual abuse convictions based on a sexual episode that
Here, the victim testified that defendant began raping her while she was unconscious after he grabbed her throat and she passed out before she could run away. When she awoke, he was engaged in the ongoing sexual assault, and that assault continued. The state contends that defendant committed two “qualitatively different rapes“: the first rape was when defendant strangled the victim and started raping her while she was unconscious, and the second rape occurred when defendant continued the assault through forcible compulsion after she awoke. Although the state concedes that the rapes occurred “in succession,” it argues that the qualitatively different nature of them precludes merger because “[t]he awakening of [the] victim in this case was a transformative intervening event which stopped the initial rape ***”
We are not persuaded that this record contains sufficient evidence that the victim‘s coming to consciousness
The state turns to our decision in West-Howell for authority that there was a sufficient pause in the instant case. There, we affirmed the trial court‘s refusal to merge guilty verdicts on two counts of first-degree sodomy based on a “sufficient pause” that occurred in the defendant‘s conduct. The defendant had forced the victim to perform oral sex on him for five to 10 minutes, moved her to a bed, and then strangled her to the point where she lost consciousness. Id. at 395-96. When the victim regained consciousness, the defendant attempted, unsuccessfully, to rape her. She fought off the defendant, and then the defendant once again forced her to perform oral sex on him. The different acts of sodomy, we explained, were separated by “assaultive conduct of a different nature.” Id. at 400. We concluded that “[t]he issue is not *** whether there existed a pause sufficient to renounce any criminal intent. Rather, the operative question is whether the pause between the two acts of sodomy was sufficient to allow defendant to renounce his intent to commit sodomy[.]” Id. at 400-01 (emphasis in original).
The state theorizes that because defendant was convicted of one count of first-degree rape based on “forcible compulsion” and the second count of rape based on “physical
We conclude that the state failed to present sufficient evidence that defendant‘s counts of raping the victim were based on acts separated by a “sufficient pause.” Accordingly, the trial court erred when it failed to merge the guilty verdicts on those two counts of first-degree rape.
Convictions on Counts 1 and 2 reversed and remanded for entry of judgment of conviction for one count of first-degree rape; remanded for resentencing; otherwise affirmed.