State v. Bradley

• Citation: 307 Or.App. 374,477 P.3d 409
• Decision Date: 28 October 2020
• Docket Number: A166375
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Ronald Edwin BRADLEY II, Defendant-Appellant.
• Court: Oregon Court of Appeals

307 Or.App. 374

477 P.3d 409

STATE of Oregon, Plaintiff-Respondent,

v.Ronald Edwin BRADLEY II, Defendant-Appellant.

A166375

Court of Appeals of Oregon.

Argued and submitted August 16, 2019.

October 28, 2020

Meredith Allen, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Jonathan N. Schildt, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before Ortega, Presiding Judge, and Shorr, Judge, and James, Judge.

ORTEGA, P. J.

This is the third time this case is before us. A jury convicted defendant of nine counts of sexual abuse in the first degree (Counts 1-7, 12, and 13), two counts of unlawful sexual penetration in the first degree (Counts 10 and 11), and one count of sodomy in the first degree (Count 14). Following a successful appeal, we reversed defendant's convictions and remanded for a new trial on Counts 1 to 7, 10, and 11, State v. Bradley , 253 Or. App. 277, 290 P.3d 827 (2012) ( Bradley I ), and we remanded for resentencing on the affirmed counts (Counts 12-14). Defendant was resentenced but successfully challenged the resentencing judgment, and we again reversed and remanded for a new resentencing on Counts 12 to 14, State v. Bradley , 281 Or. App. 696, 383 P.3d 937 (2016) ( Bradley II ), rev. den. , 361 Or. 645, 398 P.3d 45 (2017). Defendant was again resentenced on remand.

Defendant now appeals that resentencing judgment, raising three assignments of error. We reject defendant's first assignment of error without written discussion. As to his second assignment of error, we agree with defendant that the trial court erred in failing to merge the guilty verdicts on Counts 12 and 13, which obviates the need to reach his third assignment of error challenging the imposition of consecutive sentences on those counts.

The relevant facts are as follows. Defendant dated B, who is the aunt of the victim, Z. Defendant and B lived in B's mother's converted garage for a few years, and Z was a frequent visitor. One day when Z was four or five years old, defendant sexually abused her. At trial, Z testified that she and defendant were sitting on the floor in the converted garage either watching TV or playing video games, and defendant told Z to "come over towards him." While keeping his pants on, defendant took his penis out of his pants and told Z to touch it. Defendant showed Z how to "grab[ ]" his penis with her hand. Defendant then told her to put her mouth on his penis, and she did. While they were still sitting on the floor in the same location, defendant then touched her vagina with his hands under her clothes. Z testified that her pants were pulled down but did not come completely off, although she could not recall whether she or defendant pulled her pants down. The sexual abuse stopped when Z's sister, R, walked in the door to say hello. R left after a few minutes, and defendant told Z not to tell anybody what had happened.

Addressing the duration of the incident, Z testified to the following:

"[Defense Counsel]: And this event is a very short event, right?

"[Z]: Yes.

"[Defense Counsel]: It didn't last very long, correct?

"[Z]: No.

"[Defense Counsel]: You're saying that * * * this event happened and that * * * it was interrupted at some point [when your sister came into the room]. Is that right?

"[Z]: Yes."

Based on the sexual contact¹ of defendant instructing the victim to touch his penis and defendant touching the victim's vagina, defendant was charged with two counts of first-degree sexual abuse, ORS 163.427² —Count 12 (touching of the victim's vaginal area) and Count 13 (causing the victim to touch defendant's penis). Defendant was also charged with one count of first-degree sodomy (Count 14), ORS 163.405 (deviate sexual intercourse).³

During sentencing, defendant argued that the guilty verdicts for Counts 12 and 13 should merge into a single conviction for first-degree sexual abuse under ORS 161.067(3). During the discussion on whether those counts should merge, the court agreed with defendant that both charges arose from the same statute, but it noted as significant that each charge in the indictment contained different language—one count related to the touching of the penis and the other the touching of the vagina. The court ultimately denied the motion and entered separate convictions for each count, stating,

"In regards to the merge[r] issue, because I think we need to start there before the Court then imposes the next sentence. Though I appreciate the arguments made in regard to * * * Counts 12 and 13, whether they should merge, there is clearly different language in the charg[ing] instrument and testimony to support behavior for which a consecutive sentence can be imposed, because it was not merely an incidental violation of a separate statutory provision in the course of a commission of a more serious crime, but rather was an indication of defendant's willingness to commit more than one criminal offense.

"Here, it was clear that there was progression being used by the defendant to get the defendant to ultimately perform the sodomy that was performed and cut short as the result of somebody else coming in through a door. * * *

"Therefore, in regards to Counts 12 and [13], merger would not be legally appropriate."⁴

On appeal, defendant argues that the trial court erred in concluding that Counts 12 and 13 do not merge. First, defendant contends that the indictment's reference to different body parts does not prevent merger. Second, defendant argues that the verdicts should merge because there was not a "sufficient pause," ORS 161.067(3), between defendant's commission of the two counts of sexual abuse. Defendant acknowledges that, interposed between the conduct underlying the sexual abuse counts, defendant committed a different crime—first-degree sodomy. However, defendant contends that that conduct does not create a sufficient pause for purposes of merger because the three offenses were committed continuously and without an intervening event between each instance of sexual touching.

The state does not defend the trial court's conclusion that the indictment's reference to different body parts prevents merger. The state argues only that the defendant's commission of first-degree sodomy in between the two incidents of sexual abuse establishes a pause sufficient to allow defendant the opportunity to renounce his criminal intent, which supports the trial court's conclusion that the first-degree sexual abuse counts do not merge.

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. Reed , 256 Or. App. 61, 63, 299 P.3d 574, rev. den. , 353 Or. 868, 306 P.3d 640 (2013).

When multiple charges arise from the same criminal episode, "criminal conduct that violates only one statutory provision will yield only one conviction unless the so-called ‘antimerger’ statute, ORS 161.067, operates so as to permit the entry of multiple convictions." State v. Reeves , 250 Or. App. 294, 304, 280 P.3d 994, rev. den. , 352 Or. 565, 291 P.3d 737 (2012). As relevant here, ORS 161.067(3) provides:

"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."

Thus, under ORS 161.067(3), a court is permitted to enter multiple convictions for criminal conduct involving the same conduct or criminal episode, same victim, and same statutory provision only if the violations are separated from one another by a "sufficient pause" in the defendant's criminal conduct.

We begin by briefly addressing whether defendant's contact with different body parts in the commission of the sexual abuse prevents merger. As previously noted, the state does not defend that legal basis of the court's ruling, a concession that is well-taken. To the extent the court's reasoning was that defendant's contact with different body parts did not constitute "the same conduct" within the meaning of ORS 161.067(3), the court erred. Subsequent to the trial court's ruling, in State v. Nelson , 282 Or. App. 427, 433-42, 386 P.3d 73 (2016), we addressed and rejected the argument that, "because the jury found defendant guilty of three counts of sexual abuse each based on ‘contact with a different body part,’ the three counts do not involve the ‘same conduct’ " under ORS 161.067(3). For the same reasons we articulated in Nelson , ORS 161.067(3) does not prevent merger of multiple counts of sexual abuse convictions that involve contact with different body parts, and the trial court erred in concluding otherwise.⁵

We turn next to whether the evidence supports the implicit finding that there was a "sufficient pause" between defendant's commission of the sexual abuse counts. A "sufficient pause" within the meaning of ORS 161.067(3) occurs when there is "a temporary or brief cessation of a defendant's criminal conduct that occurs between repeated violations and is so marked in scope or quality that it affords a defendant the opportunity to renounce his or her criminal intent." State v. Huffman , 234 Or. App. 177, 184, 227 P.3d 1206 (2010). Before separate convictions can be imposed, "one crime must end before another begins." Id. at 185, 227 P.3d 1206 (quoting State v. Barnum , 333 Or. 297, 303, 39 P.3d 178 (2002...