State v. King

Under ORS 161.067(3), a single criminal episode of assault may be multiple violations when an assault is commenced, stops, and begins again. The pause must constitute a sufficient opportunity to renounce criminal intent.

Robert James King (King) appealed his convictions for third-degree and fourth-degree assault, arguing that the two verdicts should have been merged into a single conviction. King initiated the altercation that spawned the assault charges at issue by punching the victim. After being punched, the victim subdued defendant by holding him, but defendant was freed by a friend. After being freed, defendant joined the assault between victim and friend by hitting the victim with a barstool. In order for the two guilty verdicts to merge, defendant needed to adequately preserve his merger argument and show that there was not enough pause between assaults for him to renounce his criminal intent. The trial court preserved King's merger argument, but King failed to convince the Court of Appeals that the assaults were not separated by “sufficient pause to afford defendant an opportunity to renounce his criminal intent.” Rather than stopping the assault after being freed, King joined in a two-on-one assault of the victim. The Court held the trial court did not err in finding that the pause between assaults was sufficient for defendant to renounce his criminal intent. Affirmed.