State v. Mezick
| Decision Date | 13 November 1991 |
| Citation | 820 P.2d 849,109 Or.App. 563 |
| Parties | STATE of Oregon, Respondent, v. Franklin M. MEZICK, Appellant. 88CR0475, 89CR717; CA A65122 (Control), CA A65123. |
| Court | Oregon Court of Appeals |
Beecher C. Ellison, Grants Pass, argued the cause for appellant. With him on the brief was Kengla, Browne, Ellison & Swint, Grants Pass.
Ann F. Kelley, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.
Before WARREN, P.J., and RIGGS and EDMONDS, JJ.
Defendant was convicted in CA A65122 of rape in the first degree, ORS 163.375, and sexual abuse in the first degree, ORS 163.425, and in CA A65123 of contributing to the sexual delinquency of a minor, ORS 163.435, and two counts of sexual abuse in the second degree. ORS 163.415. All of the convictions stem from a single incident. The trial court merged the sexual abuse in the first degree conviction with the rape conviction and sentenced defendant on the remaining four convictions. Defendant challenges the convictions and the sentences.
The only issue that we address is his argument that the convictions for sexual abuse in the second degree should merge with the rape conviction. ORS 161.067. We look at the statutory elements of the offenses charged to determine whether each offense requires proof of an element that the other does not. State v. Atkinson, 98 Or.App. 48, 777 P.2d 1010 (1989). A statute defining a crime may include alternative combinations of elements that constitute the crime; we look at the combination of elements that constitute the crimes for which defendant was convicted. See State v. Crotsley, 308 Or. 272, 279, 779 P.2d 600 (1989).
Defendant was convicted of rape in the first degree under ORS 163.375(1)(a), which requires proof of forcible compulsion. His convictions for sexual abuse in the second degree were under ORS 163.415(1)(b), which requires proof that the victim is incapable of consent because she is under 18 years old, mentally defective, mentally incapacitated or physically helpless. The first degree rape conviction included the element of forcible compulsion, which was not an element of the second degree sexual abuse charge; the second degree sexual abuse conviction required proof that the victim was under 18 years of age, which was not a required element on the rape charge. The second degree sexual...
To continue reading
Request your trial
-
U.S. v. Beltran-Munguia
...sexual abuse where the victim professed consent but was legally incapable of giving it. See id. at 179; State v. Mezick, 109 Or.App. 563, 820 P.2d 849, 850 (1991); State v. Landino, 38 Or.App. 447, 590 P.2d 737, 739 ORS section 163.315 delineates four types of legal incapacity that apply to......
-
State v. McCloud
...did not); State v. Wallock, 110 Or.App. 109, 821 P.2d 435 (1991), rev. den. 313 Or. 75, 828 P.2d 458 (1992) (same); State v. Mezick, 109 Or.App. 563, 820 P.2d 849 (1991) (same); State v. Graves, 92 Or.App. 642, 759 P.2d 1121 (1988) (convictions did not merge where crimes involved separate v......
-
State v. Reiland
...crime, we look at the combination of elements that constitutes the crimes for which the defendant was convicted. State v. Mezick, 109 Or.App. 563, 565, 820 P.2d 849 (1991). Here, we do not agree that proof that defendant "allowed children to stay" and "permitted children to remain" require ......
-
State v. Nunn
...ways, we look at the combination of elements that make up the crimes of which the defendant was convicted. State v. Mezick, 109 Or.App. 563, 565, 820 P.2d 849 (1991). Defendant was convicted of forgery under ORS 165.007(1)(a) and ORS 165.013(1)(c), which require proof that the accused false......