State v. Dearmitt

• Decision Date: 14 August 2019
• Docket Number: A161616
• Citation: 448 P.3d 1163,299 Or.App. 22
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Steven Clyde DEARMITT, Defendant-Appellant.
• Court: Oregon Court of Appeals

299 Or.App. 22

448 P.3d 1163

STATE of Oregon, Plaintiff-Respondent,

v.Steven Clyde DEARMITT, Defendant-Appellant.

A161616

Court of Appeals of Oregon.

Argued and submitted September 26, 2017.

August 14, 2019

Kenneth A. Kreuscher argued the cause and filed the opening brief for appellant. Steven DeArmitt filed the supplemental brief pro se.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for appellant. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge.

DEHOOG, P. J.

Defendant appeals a judgment of conviction entered upon his plea of guilty to four counts of sexual abuse in the second degree, ORS 163.425(1)(a), all of which he committed against the same victim.¹ In his opening brief, defendant assigns error to the trial court’s failure to merge two of those counts—Counts 4 and 6—into a single conviction, as well as the court’s determination that each of the four counts were level "7" offenses on the sentencing guidelines’ crime seriousness scale. In a supplemental brief filed on his own behalf, defendant assigns error to three additional rulings: the trial court’s denial of his motion to suppress, its imposition of upward departure sentences, and its calculation of defendant’s criminal history score. Writing only to address defendant’s first assignment of error, we conclude that the trial court erred in failing to merge its findings of guilt as to Counts 4 and 6. That error requires us to remand the entire case for resentencing; as a result, it is unnecessary for us to address defendant’s second assignment of error—regarding the classification of his offenses at crime seriousness level 7—or his pro se assignments regarding sentencing, because the court will have an opportunity, to the extent it may be appropriate, to address those issues anew upon resentencing.²

As noted, defendant’s first assignment of error contends that the trial court erred in failing to merge its findings of guilt as to two counts of sexual abuse in the second degree, Counts 4 and 6 of the indictment. In defendant’s view, ORS 161.067(3) required the court to merge those two counts and enter a single conviction because they resulted from multiple violations of the same statutory provision and occurred in a single criminal episode. Citing the same statute, the state responds that the trial court properly entered separate convictions because Counts 4 and 6 involved different "methods" of committing second-degree sexual abuse. We conclude that, because the record reflects that Counts 4 and 6 were (1) committed against the same victim during a single criminal episode; (2) violated only one statutory provision; and (3) were not separated by a sufficient pause to afford the defendant an opportunity to renounce his criminal intent, ORS 161.067(3) required the court to merge those counts and enter a single conviction for second-degree sexual abuse. We therefore agree with defendant that the trial court erred in not merging those counts.

A detailed discussion of the facts underlying defendant’s convictions is unnecessary to frame the legal issue this case presents. We note, however, that we generally are bound by a sentencing court’s findings of fact if there is constitutionally sufficient evidence in the record to support them, and we review the court’s resulting merger ruling for legal error. State v. Black , 270 Or. App. 501, 504-05, 348 P.3d 1154 (2015). Furthermore, we state the facts underlying that ruling in the light most favorable to the state; that is, in the light most favorable to the trial court’s conclusion that merger was not required. State v. Loving, 290 Or. App. 805, 807, 417 P.3d 470 (2018).

It is undisputed that defendant’s plea of guilty to four counts of second-degree sexual abuse was based on conduct comprising three separate criminal episodes. All four counts involved the same victim, who was 13 or 14 years old when the crimes occurred. Count 1 occurred at an apartment complex, where defendant touched the victim and digitally penetrated her vagina. Count 2 occurred at a motel, where defendant again touched and digitally penetrated the victim’s vagina. Counts 4 and 6 occurred at the home of defendant’s father, where defendant subjected the victim to sexual intercourse without her consent (Count 4), and penetrated her anus with his finger (Count 6).

At the plea hearing, the parties agreed that defendant’s conduct comprised three criminal episodes, with Counts 1 and 2 each arising out of its own criminal episode, and Counts 4 and 6 both arising out of a third, separate and distinct criminal episode. Defendant argued that, because Counts 4 and 6 arose out of the same criminal episode, the court was required to merge its determinations of guilt on those two counts. The state responded that, although Counts 4 and 6 were part of the same criminal episode, those counts should not merge because each had caused the victim separate harm stemming from different conduct within that episode. The parties continued to argue the issue at sentencing. The state reasoned that the distinct conduct underlying Counts 4 and 6—digitally penetrating the victim’s anus and engaging in sexual intercourse—demonstrated intent to commit two distinct criminal acts. Thus, although the state acknowledged that both acts constituted the same offense—second-degree sexual abuse—it argued that the two acts should "stand on their own" because they were "not in any way similar or the same conduct" and caused a "separate harm."

The trial court agreed with the state and declined to merge Counts 4 and 6, explaining to defendant:

"There’s also been a stipulation that there are at least three criminal episodes represented in the charges you pled guilty to, but they disagree on whether the fourth and sixth count merge. The District Attorney’s Office has pointed out that, in his mind, these offenses have separate harms because they involve separate body parts, but they essentially fall under the same statute, Sex Abuse in the Second Degree. They are pled separately, however, and talk about different body parts, and you’ve admitted to those different acts, so I do not find that those merge for purposes of sentencing, in my mind."

Accordingly, the court entered a judgment convicting defendant of four counts of second-degree sexual abuse. Ultimately, the court imposed upward departure sentences of 60 months’ imprisonment on each of the four counts, to be served consecutively. Defendant appeals.

As he did at sentencing, defendant argues on appeal that the trial court was required to merge its findings of guilt on Counts 4 and 6 into a single conviction. Merger is governed by ORS 161.067. Where multiple charges arise from a single 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) ; see also ORS 161.067(3). Under the "antimerger" rule, and specifically under the first sentence of ORS 161.067(3), when, in the course of a single criminal episode, a defendant has committed 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, as the state acknowledges, a trial court generally may not enter multiple convictions for conduct comprising a single criminal episode, involving a single victim, and violating only one statutory provision unless the state establishes both that the defendant violated the statutory provision multiple times and that each violation was "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." ORS 161.067(3) ; State v. Stanton , 266 Or. App. 374, 379, 337 P.3d 955 (2014) ("To convict on separate guilty verdicts pursuant to the anti-merger statute, a trial court therefore is required to determine the number of victims, and, if there was only one victim, whether there was a sufficient pause in defendant’s criminal conduct."); Reeves , 250 Or. App. at 304, 280 P.3d 994 (explaining operation of antimerger statute, ORS 161.067 ).

Here, as noted, it is undisputed that the conduct underlying the two second-degree sexual abuse charges alleged in Counts 4 and 6 comprised a single criminal episode involving a single victim. Further, the state does not contend—and did not contend at sentencing—that the conduct supporting those charges was separated by "a sufficient pause in the defendant’s criminal conduct" to preclude merger. ORS 161.067(3). Rather, the state points to the second sentence of ORS 161.067(3), which provides that

"[e]ach 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 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."

(Emphases added.)³ Relying on that provision, the state argues that the trial court properly denied defendant’s request that it merge Counts 4 and 6 and enter a single conviction for those counts, because each of those violations of ORS 163.425(1)(a) involved a different "method" of committing second-degree sexual abuse. See State v. Nelson , 282 Or. App. 427, 441-42, 386 P.3d 73 (2016) (observing that, for purposes of unlawful sexual penetration statute, ORS...