State v. Moscote-Saavedra
| Citation | 320 Or.App. 682,514 P.3d 1169 |
| Decision Date | 13 July 2022 |
| Docket Number | A173012 |
| Parties | STATE of Oregon, Plaintiff-Respondent, v. Gabriel MOSCOTE-SAAVEDRA, Defendant-Appellant. |
| Court | Court of Appeals of Oregon |
Emily P. Seltzer, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.
Jennifer S. Lloyd, Assistant Attorney General, Salem, 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 Powers, Judge.
Defendant appeals a judgment of conviction for three counts of first-degree sexual abuse (Counts 3, 4, and 5), attempt to commit first-degree rape (Count 6), and first-degree burglary (Count 7). A jury returned unanimous verdicts on those charges and on two burglary offense subcategory factors. Defendant raises three assignments of error. In his third assignment of error, he argues that the trial court erred in instructing the jury that it could return nonunanimous guilty verdicts on the charges and offense subcategories, asserting that the error was structural or alternatively not harmless. Although the court erred in giving the nonunanimous jury instruction, Ramos v. Louisiana , 590 U.S. ––––, 140 S.Ct. 1390, 206 L.Ed.2d 583 (2020), the error is not reversible because it is not structural and, as to unanimous verdicts, is harmless beyond a reasonable doubt. State v. Flores Ramos , 367 Or. 292, 334, 478 P.3d 515 (2020) ; State v. Enloe , 316 Or.App. 680, 681-82, 502 P.3d 1213 (2021) (); State v. Huynh , 315 Or.App. 456, 458, 500 P.3d 767 (2021) ().
In combined assignments of error one and two, defendant argues that the trial court erred in failing to merge the guilty verdicts on Counts 3, 4, and 5 into a single conviction, because the sexual contacts occurred during the same criminal episode without evidence of a "sufficient pause" between each act. See ORS 161.067(3) (). The state concedes that the court erred in relying on the consecutive-sentencing statute, ORS 137.123, and not the merger statute, ORS 161.067, in deciding the merger issue. However, in the state's view, the record does support a determination that there was a "sufficient pause" between each act of sexual abuse and therefore asks us to allow the court to reconsider defendant's merger argument on remand under the correct legal standard. Although we agree with the state that the court erred in relying on the wrong legal standard, we agree with defendant that, even under the correct one, the record does not contain the requisite evidence to support a "sufficient pause" between each instance of sexual abuse. We therefore reverse and remand the convictions on Counts 3, 4, and 5 for entry of a single conviction and otherwise affirm.
We begin with the undisputed background facts, providing more detailed facts in our analysis. One night when R was asleep in her bed, she was awakened by a man, later identified as defendant, climbing into her bed. While armed with a knife1 and holding his hand over her mouth and nose, he committed various acts of sexual assault set forth later in greater detail. The ordeal lasted approximately 30 minutes and ended after defendant ejaculated and ran out of R's apartment.
For that conduct, defendant was charged with numerous crimes, including first-degree sodomy (anal sexual intercourse), ORS 163.405 (Count 1); first-degree sexual penetration by force (penetrating the vagina with his fingers), ORS 163.411 (Count 2); attempted first-degree rape by force (vaginal intercourse), ORS 163.375 (Count 6); first-degree burglary, ORS 164.225 (Count 7); second-degree assault, ORS 163.175 (Count 8); and unlawful use of a weapon, ORS 166.220 (Count 9). Defendant was also charged with three counts of first-degree sexual abuse by force, ORS 163.427,2 based on the touching of different body parts: defendant touching R's breast (Count 3); defendant touching R's buttocks (Count 4); and defendant forcing R to touch his penis (Count 5). A jury convicted defendant of the three counts of first-degree sexual abuse, attempted rape, and first-degree burglary. The court granted the state's motion to dismiss the second-degree assault charge (Count 8) and defendant was acquitted on Counts 1, 2 and 9.
Related to sentencing, defendant argued that the verdicts on all three sexual abuse counts should merge for entry of a single conviction, because they occurred during the same criminal episode, involved violations of the same statutory provision against the same victim, and there was no evidence of a sufficient pause between each act. The state disagreed. Relying on the consecutive-sentencing statute, ORS 137.123, it argued that the court was permitted to enter separate convictions based on each act. The trial court denied defendant's motion, entered separate convictions for each count of sexual abuse, and ordered the prison terms on Counts 4 and 5 to run consecutively to the prison term on Count 3. However, the court ordered the prison term on the attempted-rape count to run concurrently to all other counts, finding that it "does merge for sentencing purposes." 3
On appeal, defendant renews his merger argument made below. The parties agree that defendant's conduct was part of one criminal episode and involved repeated violations of the same statutory provision against the same victim. The parties also agree that the court erred but disagree as to its precise error. Defendant contends that the court erred in failing to merge the guilty verdicts on the sexual abuse counts without evidence of a "sufficient pause." The state, however, asserts that the court's error was in basing its merger ruling on the standard applicable to consecutive sentencing, ORS 137.123, and not merger, ORS 161.067(3). According to the state, the appropriate remedy is to allow the court to reconsider the merger issue on remand under the correct legal framework, because it views the record as establishing a "sufficient pause." The state concedes, however, that a remand is not required if we determine that the record does not, as a matter of law, allow for entry of a separate conviction for each act of sexual abuse, even applying the correct legal framework.
ORS 161.067(3).
As relevant, ORS 137.123(5)(a) permits a court to impose consecutive terms of imprisonment for "separate convictions arising out of a continuous and uninterrupted course of conduct" if it finds:
"(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision in the course of the commission of a more serious crime but rather was an indication of defendant's willingness to commit more than one criminal offense[.]"
Defendant argued in a written sentencing memorandum that the three guilty verdicts for sexual abuse must merge into a single conviction under ORS 161.067(3), because defendant's conduct occurred during the same criminal episode without evidence of a temporal break or other significant intervening event to support a determination that a "sufficient pause" occurred between each act of sexual abuse.
For support, defendant cited State v. Nelson , 282 Or.App. 427, 429, 431, 386 P.3d 73 (2016) (), and State v. Dugan , 282 Or.App. 768, 773, 387 P.3d 439 (2016) (same).4
At the outset of the sentencing hearing, the trial court acknowledged having read defendant's sentencing memorandum and recognized that his arguments and cases cited in support "goes to whether or not the court determines that there was a sufficient pause." Although defendant did not refer to the statute in his written merger argument, the state's position was that defendant's written merger analysis was legally incorrect under ORS 137.123. In rejecting defendant's merger argument, the court ruled that, given the facts of the case, the crimes were "separate acts" and "not the same criminal episode" under ORS 137.123.
On appeal, defendant argues that, although the court incorrectly denied his merger motion, it relied on the correct statute when ruling. He points to the court's oral finding that defendant's conduct constituted "separate acts," which, defendant contends, is grounded in the text of the statute applicable to merger. See ORS 161.067(3) (...
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