State v. Campbell

Pursuant to ORS 161.067(3), where the there is not sufficient evidence for a reasonable factfinder to conclude that there is no pause for reflection “to afford the defendant an opportunity to renounce the criminal intent,” the conduct should reflect a single conviction.

Defendant appealed his conviction for two counts of second-degree assault. The assault occurred when Defendant, a boyfriend-pimp, repeatedly shot a BB gun at the victim. On appeal, Defendant raised multiple assignments of error, however the Court only addressed Defendant’s challenge to the trial court’s merger ruling. Defendant contended that the trial court failed to merge two counts of second-degree assault, pursuant to ORS 161.067(3), an “anti-merger” statute, because there was no pause for reflection “to afford the defendant an opportunity to renounce the criminal intent,” thus the assault was one continuous episode. The Court held that the trial court erred by failing to merge the two counts of second-degree assault into a single conviction. The Court reasoned that there was not sufficient evidence for a reasonable factfinder to conclude that one assault ended before another had begun. Counts 1 and 2 are reversed and remanded with instruction to enter a judgment of conviction for one count of second-degree assault and for resentencing, otherwise affirmed.