State v. West-Howell

• Decision Date: 23 November 2016
• Docket Number: A157181
• Citation: 282 Or.App. 393,385 P.3d 1121
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Anthony Allen WEST-HOWELL, Defendant-Appellant.
• Court: Oregon Court of Appeals

282 Or.App. 393

385 P.3d 1121

STATE of Oregon, Plaintiff-Respondent,

v.Anthony Allen WEST-HOWELL, Defendant-Appellant.

A157181

Court of Appeals of Oregon.

Argued and submitted February 23, 2016.

November 23, 2016

Morgan E. Daniels, Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Patrick M. Ebbett, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

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

GARRETT, J.

Defendant appeals a judgment convicting him of, among other offenses, two counts of first-degree sodomy, ORS 163.405¹ (Counts 2 and 5). He assigns error to the trial court's failure to merge the guilty verdicts on those two counts into a single conviction under ORS 161.067² (the antimerger statute), arguing that the record lacks evidence of a sufficient pause between the two violations. Defendant also raises an unpreserved challenge to the trial court's imposition of court-appointed attorney fees. For the reasons explained below, we reverse the portion of the judgment that requires defendant to pay attorney fees but otherwise affirm.

Defendant and the victim were married and living together. On the date in question, the two had a physical altercation that began in the kitchen when defendant shoved the victim into a cabinet. The encounter carried into the bedroom, where defendant held the victim on the ground and demanded that she perform oral sex on him. Defendant threatened to hurt the victim if she did not do as she was told. The victim performed oral sex on defendant for about five or 10 minutes. Defendant then moved the victim onto the bed and strangled her to the point that she lost consciousness. When the victim regained consciousness, defendant flipped her over onto her stomach and attempted, unsuccessfully, to rape her. The victim fought defendant off and they ended up on the floor, where defendant once again forced the victim to perform oral sex.³

A jury convicted defendant of multiple offenses, including, as pertinent here, two counts of first-degree sodomy.⁴ At sentencing, defendant argued that the two convictions must merge under ORS 161.067(3). The trial court rejected that argument and entered separate sentences based on its finding that the two crimes were separated by a sufficient pause in which defendant had the opportunity to renounce his criminal intent:

"The issue in terms of the merger between counts two and * * * five * * * is not whether the intervening conduct was another crime. It's whether there was intervening conduct that allowed a sufficient pause between counts two and * * * five * * * for the defendant to re-evaluate his criminal conduct.

" * * * * *

"My analysis * * * remains that the sex crimes are distinct from the domestic violence crimes, that he commits the sodomy, he then goes into this choking incident, which again he was not convicted of a crime for that but his own statement is in the record indicating that it happened. So some kind of choking conduct occurred there and then he goes back to sexual conduct and I believe that under the case law that that is a sufficient pause to have allowed the defendant to reconsider his conduct. He could have at that time been satisfied with physical violence or he could have at that time gotten a grip and said I need to stop this and instead he progressed to another sexual violation of the victim."

On appeal, defendant renews his merger argument. We review the trial court's ruling on whether to merge defendant's guilty verdicts for legal error and are bound by the trial court's factual findings if there is constitutionally sufficient evidence in the record to support them. State v. Campbell , 265 Or.App. 132, 134, 333 P.3d 1220 (2014).

Oregon's "antimerger" statute, ORS 161.067, provides, in pertinent part:

"(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 sufficient pause in the defendant's criminal conduct to afford the defendant an opportunity to renounce the criminal intent ."

(Emphasis added.)

As used in ORS 161.067(3), the term "sufficient pause" means "a temporary or brief cessation of a defendant's criminal conduct that occurs between repeated violations and is so marked in scope or quality that it affords a defendant the opportunity to renounce his or her criminal intent." State v. Huffman , 234 Or.App. 177, 184, 227 P.3d 1206 (2010). The duration of a pause and what a defendant did during a pause are questions of historical fact; whether a pause was sufficient to afford the defendant an opportunity to renounce his criminal intent, however, is a question of law. State v. Reed , 256 Or.App. 61, 63, 299 P.3d 574, rev. den. , 353 Or. 868, 306 P.3d 640 (2013). Furthermore, "[i]n order for a pause to be between violations, ‘one crime must end before another begins.’ " Id . at 68, 299 P.3d 574 (quoting State v. Barnum , 333 Or. 297, 303, 39 P.3d 178 (2002), overruled on other grounds by State v. White , 341 Or. 624, 147 P.3d 313 (2006) (emphasis in original)). Thus, to support the entry of multiple convictions for the same offense under ORS 161.067(3), one crime must end before another begins and each crime must be separated from the others by a sufficient pause in the defendant's criminal conduct to afford him an opportunity to renounce his criminal intent. See id. at 62, 299 P.3d 574.

Here, the parties do not dispute that defendant's conduct involved repeated violations of the same statutory provision against the same victim. Rather, the parties disagree as to whether the violations were separated from one another by a "sufficient pause" to afford the defendant an opportunity to renounce his criminal intent.

Defendant contends that his guilty verdicts must merge because the two instances of sodomy occurred as part of an "ongoing attack" against the victim and were separated only by additional criminal conduct. In defendant's view, the fact that he continued to engage in criminal acts between the two instances of sodomy rendered any pause between the two acts of sodomy insufficient to renounce his criminal intent. The state emphasizes that the two crimes were separated by a pause during which defendant moved the victim onto the bed, strangled her until she lost consciousness, and attempted to rape her. Those facts, in the state's view, establish a sufficient pause. We agree.

Here, the trial court determined that the first act of sodomy ended before the second began, based, in part, on its finding that defendant perpetrated different acts of violence against the victim in between those two acts. The trial court acknowledged that defendant was not convicted of a separate crime for that conduct; nevertheless, the court observed that it was "undisputed" that the conduct had occurred, as evidenced by defendant's recorded statement describing the incident. See State v. Glazier , 253 Or.App. 109, 115, 288 P.3d 1007 (2012), rev. den. , 353 Or. 280, 298 P.3d 30 (2013) ("We are bound by the trial court's findings of fact, so long as they are supported by the evidence."). Moreover, on appeal, defendant does not contest that aspect of the trial court's ruling. Thus, we turn to the issue of whether defendant's acts were separated by a pause sufficient to afford him an opportunity to renounce his criminal intent.

Although we have previously analyzed the "sufficient pause" issue in a number of different settings, we have yet to address the issue in the context presented by this case (i.e. , the sufficiency of a pause between sexual crimes, during which the defendant engages in other criminal conduct). Nevertheless, we find instructive our decisions addressing merger in the context of convictions for multiple counts of assault. See State v. Cale , 263 Or.App. 635, 330 P.3d 43 (2014) (looking to assault merger cases to determine whether multiple convictions for using a child in the display of sexually explicit conduct must merge under ORS 161.067(3) ).

We have held that merger of guilty verdicts for assault is proper in cases where the record reflects a "continuous and uninterrupted attack of a victim." Campbell , 265 Or.App. at 139, 333 P.3d 1220. In Campbell , the defendant was convicted of multiple counts of assault for shooting the victim several times with a BB gun while sitting inside the victim's truck. At some point during the incident, the victim attempted to run from the truck but was pulled back by the defendant before she could escape. Id . at 135, 333 P.3d 1220. On appeal, we determined that the defendant's guilty verdicts for assault must merge because there was no evidence from which a reasonable factfinder could have concluded that one assault ended before another began. Id . at 138–39, 333 P.3d 1220. We noted that the entire violent episode occurred in the cab of the victim's truck, without interruption by any "significant" event and without a pause in the defendant's aggression. Id .

By contrast, in State v. King , 261 Or.App. 650, 656, 322 P.3d 597 (2014), we held that the trial court correctly entered separate convictions for multiple counts of assault. The defendant in that case punched the victim, a bar employee, after being asked to leave the bar. Id. at 651, 322 P.3d 597. The victim managed to temporarily subdue the defendant by wrestling him to the ground; however, the defendant broke free and continued beating the victim with the help of a friend. The defendant was convicted of two counts of assault, which the trial court declined to...