State v. Moore
| Decision Date | 20 April 2022 |
| Docket Number | A169841 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Jihad Eldeen MOORE, aka Jihad Eldeen Moore, Jr., Defendant-Appellant. |
| Court | Oregon Court of Appeals |
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.
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 (Counts 1 and 2), ORS 163.375, and one count of first-degree sodomy (Count 3), ORS 163.405, raising three assignments of error. We reject his second assignment without discussion and write only to address the first and third. In the first, defendant claims that the trial court erred by denying a motion to dismiss because the statute of limitations for his offenses had already expired. In the third, defendant argues that the trial court erred when it failed 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 ORS 161.067(3). For the reasons explained below, we reject defendant's argument regarding the statute of limitations, but we agree with defendant regarding merger. We therefore reverse and remand the convictions on Counts 1 and 2 for entry of a single conviction, and otherwise affirm.
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. ORS 131.125 (1995). In 2001, before the six-year limitations period had run, the legislature enacted a 12-year limitations period, provided that the defendant was identified on the basis of a DNA sample comparison, but the legislature did not expressly address the issue of retroactivity. Or. Laws 2001, ch. 375, § 1. Then, in 2007, the legislature enacted a 25-year limitations period and explicitly made it retroactive to apply to crimes committed before its effective date, if the prior limitations period had not expired. Or. Laws 2007, ch. 840, §§ 1-2.
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 P.3d 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 previous limitation." Ritcherson v. State of Oregon , 131 Or. App. 183, 187, 884 P.2d 554 (1994), rev. den. , 320 Or. 507, 888 P.2d 568 (1995) (citing Nichols v. Wilbur , 256 Or. 418, 419-20, 473 P.2d 1022 (1970) ; State v. Dufort , 111 Or. App. 515, 519, 827 P.2d 192 (1992) ).
We review a trial court's interpretation of a statute as a question of law. Gaines , 346 Or. at 171-72, 206 P.3d 1042 ; Rhodes v. Eckelman , 302 Or. 245, 248, 728 P.2d 527 (1986) (). Our interpretation of a statute is governed by the three-part test set out in Gaines , 346 Or. at 171-72, 206 P.3d 1042. 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, 206 P.3d 1042.
We begin with the statute at issue, which is the 2001 amendment to ORS 131.125 set out in Oregon Laws 2001, chapter 375, section 1:
"(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 ORS 131.125(8) (2001) as amended does not explicitly address whether the new limitations period applies retroactively. However, the language of the statute does not preclude its retroactive application. Indeed, subsection (8) specifies that "a prosecution * * * may be commenced within 12 years after the commission of the crime if the defendant is identified after the period described in subsection (2)." Therefore, nothing in the plain language of the statute contradicts the extension of the limitations period for the listed offenses if the original six-year limitations period has not already run. Indeed, the statute's text denotes that in the particular circumstance that a defendant is identified by DNA analysis, the limitations period set out in subsection (2) is extended to 12 years. However, the plain language of the statute does not resolve whether it extends an existing period of limitations that has not yet run.
As we have noted, "[i]n both civil and criminal contexts, enlarged Statutes of Limitations have been applied retroactively, but only for claims that were not yet barred by the previous limitation." Ritcherson , 131 Or. App. at 187, 884 P.2d 554 (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, 827 P.2d 192. 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, 827 P.2d 192.
We reach a similar conclusion in this case in light of the legislative history of the 2001 amendment. The amendment to ORS 131.125 originated in the House of Representatives as House Bill (HB) 2663 (2001). The committee discussed the retroactive application of the limitations period at a public hearing on the bill. Tape Recording, House Committee on Judiciary, Subcommittee on Criminal Law, HB 2663, Mar 27, 2001 (testimony of Dale Penn of the Oregon District Attorneys Association). When asked by legislative counsel about the prospective or retroactive application of the limitations period, Penn responded that it would not apply to a limitations period that had already run, and he pointed to case law on the topic, stating, "A statutory change would only extend those cases where the statute has not run." Penn further remarked that the existing DNA...
To continue reading
Request your trial