State v. Cale

Criminal charges may not be merged where "sufficient pause" between acts is not present.

Defendant challenged convictions pertaining to criminal acts of child exploitation. Defendant took sexually explicit photographs of J, a four year old, while J's mother T.S. ran errands. Three photographs constituted three counts of using a child in display of sexually explicit conduct under ORS 163.670; the transfer of these photographs off of the camera and onto other electronic media constituted three counts of encouraging child sex abuse under ORS 163.684. The state argued that each picture constituted an individual offense and that each conviction thereof should be upheld. Defendant argued that ORS 161.067(3) requires "sufficient pause" between criminal occurrences so as to provide an opportunity for reflection between instances and subsequent opportunity to discontinue in order for each act to remain independent and avoid merger. Defendant further argued that the 2 second lapse between snapshots did not provide sufficient pause to such an effect that Counts 2-4 should remain independent. Furthermore, Defendant argued that there was no evidence on the record to indicate that Defendant initiated the transfer of the three photos in question individually so as to preserve the individuality of Counts 5-7. The Court agreed. Reversed and remanded on Counts 2-4 and 5-7 with instruction for alternate sentencing.