State v. Nelson

Citation386 P.3d 73,282 Or.App. 427
Decision Date30 November 2016
Docket NumberA154617
Parties State of Oregon, Plaintiff-Respondent, v. Quandary Nelson, aka Quandry Nelson, aka Quandray Jamon Nelson, Defendant-Appellant.
CourtCourt of Appeals of Oregon

282 Or.App. 427
386 P.3d 73

State of Oregon, Plaintiff-Respondent,
v.
Quandary Nelson, aka Quandry Nelson, aka Quandray Jamon Nelson, Defendant-Appellant.

A154617

Court of Appeals of Oregon.

Argued and submitted March 10, 2015.
November 30, 2016


Zachary Lovett Mazer, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Karla H. Ferrall, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

ORTEGA, P.J.

282 Or.App. 429

Following a reversal and remand of defendant's convictions for first-degree sexual abuse and first-degree rape in State v. Nelson , 241 Or.App. 681, 251 P.3d 240 (2011), rev. dismissed as improvidently allowed , 354 Or. 62, 308 P.3d 206 (2012), a jury found defendant guilty on retrial of two counts of first-degree sexual abuse, one count of third-degree sexual abuse, and one count of first-degree rape.1 He appeals, challenging the convictions entered on each of those counts. First, he asserts that the state failed to prove that a witness who testified at his first trial was "unavailable" to testify at his second trial; accordingly, he asserts that the court's admission of that witness's testimony from the first trial into evidence at the second trial was prohibited by OEC 804(3), and violated his right to confront witnesses under Article I, section 11, of the Oregon Constitution, and the Sixth Amendment to the United States Constitution. We reject that assignment of error without written discussion. Second, defendant claims that the trial court should have merged the guilty verdicts for two counts of first-degree sexual abuse and one count of third-degree sexual abuse into a single conviction for first-degree sexual abuse.

As we explain below, we agree with defendant that the court should have merged the guilty verdicts for sexual abuse into one conviction for first-degree sexual abuse because there was no evidence to support the trial court's determination that each instance of sexual contact was separated from the other instances of sexual contact by a "sufficient pause" in defendant's criminal conduct to afford defendant an opportunity to renounce his criminal intent. See ORS 161.067(3). In doing so, we also reject the state's threshold argument that the "antimerger" statute, ORS 161.067, does not apply in this case because defendant's three separate acts of sexual contact in a short amount of

282 Or.App. 430

time do not constitute the "same conduct or criminal episode" within the meaning of ORS 161.067(3). Accordingly, we remand for resentencing and otherwise affirm.

We recount the relevant background facts in the light most favorable to the state. State v. Washington , 355 Or. 612, 614, 330 P.3d 596 (2014) ("Because the jury found defendant guilty, we view the evidence presented at trial in the light most favorable to the state."). A grand jury indicted defendant of fourth-degree assault (Count 1), three counts of first-degree sexual abuse (Counts 2 through 4), second-degree sexual abuse (Count 5), first-degree rape (Count 6), and unauthorized use of a vehicle (UUV) (Count 7). A jury found defendant guilty of first-degree rape, first-degree sexual abuse, fourth-degree assault, and UUV. Defendant appealed, and we reversed and remanded his first-degree rape and first-degree sexual abuse convictions because the trial court failed to instruct the jury that it had to find that defendant had knowingly subjected the victim to forcible compulsion in order to convict him of those crimes. Nelson , 241 Or.App. at 689, 251 P.3d 240.

After remand, the evidence at defendant's second trial showed that defendant and the

386 P.3d 76

victim had begun dating in late 2006. In the early morning hours of April 7, 2007, the victim drove defendant, at his request, to a friend's apartment. When they arrived, defendant took the victim's phone, and she waited for him in the car. Eventually, she knocked on the door of the apartment because she wanted to go home. Defendant answered the door in an agitated state, and they argued as they returned to the victim's car. While seated in the car, defendant slapped the victim in the face with the back of his hand, breaking three of her bottom teeth. They returned to the victim's condominium, where her children were sleeping. Defendant refused to leave the victim alone, telling her that he could not let her out of his sight because she might call the police. She and defendant went to sleep for a couple of hours. After waking, defendant followed the victim around her home. Eventually she went into the bathroom. Defendant followed her in and closed and locked the door. While in the closed and locked bathroom, defendant reached down the victim's shirt and touched her bare breast,

282 Or.App. 431

exposed himself to the victim, grabbed her hand, forced her to touch his penis, and reached down the victim's pants and touched her vagina.2 After those sexual contacts, defendant lowered the victim's pants and underwear and began penetrating her vaginally. The victim, who had been crying throughout the encounter, began crying harder. In the midst of the assault, he asked her if she wanted him to stop and the victim replies, "Yes." He laughed and continued penetrating her. After the assault, defendant apologized to the victim, saying he was a "piece of shit." He then left in the victim's car. The victim called the police on her way to the hospital.

Based on three separate instances of sexual contact3 in the bathroom, defendant was charged with three counts of first-degree sexual abuse—Count 2 (touching of the victim's vaginal area), Count 3 (touching of the victim's breast), and Count 4 (forcing the victim to touch defendant's penis). Defendant was also charged with one count of first-degree rape. The jury found defendant guilty of first-degree sexual abuse on Counts 2 and 4, the lesser included offense of third-degree sexual abuse on Count 3, and first-degree rape. At sentencing, the parties disputed whether the three guilty verdicts on Counts 2, 3, and 4 should merge into a single conviction for first-degree sexual abuse under ORS 161.067(3).

Generally, "with respect to 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). That statute establishes three circumstances where the merger of multiple guilty verdicts based on the "same conduct or criminal episode" is precluded:

"(1) When the same conduct or criminal episode violates two or more statutory provisions and each provision
282 Or.App. 432
requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.

"(2) When the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims. * * *

"* * * * *

"(3) 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
386 P.3d 77
sufficient pause in the defendant's criminal conduct to afford the defendant an opportunity to renounce the criminal intent. Each method of engaging in deviate sexual intercourse as defined in ORS 163.305, and each method of engaging in unlawful sexual penetration as defined in ORS 163.408 [Unlawful sexual penetration in the second degree] and 163.411 [Unlawful sexual penetration in the first degree] shall constitute separate violations of their respective statutory provisions for purposes of determining the number of statutory violations."

ORS 161.067.

At sentencing, defendant argued that the guilty verdicts for sexual abuse4 should be merged under ORS 161.067(3) into one conviction for first-degree sexual abuse because defendant's conduct violated the same statutory provision against the same victim and his repeated violations of the statutory provision were not separated "by a sufficient pause * * * to afford [him] an opportunity to renounce the criminal intent."

The state argued that ORS 161.067(3) did not apply to defendant's sexual abuse guilty verdicts because each guilty verdict reflected different conduct by defendant and, therefore, constituted a separate "criminal episode." That is,

282 Or.App. 433

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28 cases
  • State v. Moscote-Saavedra
    • United States
    • Court of Appeals of Oregon
    • July 13, 2022
    ...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) (concluding that multiple guilty verdicts for sexual abuse based on touching of different body parts merge into a s......
  • State v. Bradley
    • United States
    • Court of Appeals of Oregon
    • October 28, 2020
    ...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 abu......
  • State v. Moscote-Saavedra
    • United States
    • Court of Appeals of Oregon
    • July 13, 2022
    ...that a "sufficient pause" occurred between each act of sexual abuse. 6 [320 Or.App. 688] For support, defendant cited State v. Nelson, 282 Or.App. 427, 429, 431, 386 P.3d 73 (2016) (concluding that multiple guilty verdicts for sexual abuse based on touching of different body parts merge int......
  • State v. Ortiz-Rico
    • United States
    • Court of Appeals of Oregon
    • March 18, 2020
    ...state failed to establish that a significant intervening event or pause in defendant’s aggression occurred. See State v. Nelson , 282 Or. App. 427, 447, 386 P.3d 73 (2016) (concluding that merger of three counts of sexual abuse was required when "the entire violent episode at issue occurred......
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