State v. Pass

Because the elements of second-degree sexual assault and third-degree sodomy were congruent in this case as charged, the trial court committed a plain error by failing to merge these counts.

Defendant was convicted of second-degree sexual abuse (count 2), third-degree sodomy (count 3), and third-degree sexual abuse (counts 4 & 5). Defendant’s victim was 15 years old. On appeal, Defendant argued counts 2 and 3 should have been merged, despite his merger argument not being preserved, because these convictions were based on the exact same conduct. The Court agreed with Defendant, citing State v. Ofodrinwa which held lack of consent was equivalent to inability to consent. Because the victim was under 16, the elements of counts 2 and 3 were congruent as charged, so the counts should have been merged. The Court held the trial court’s failure to do so was a plain error, which the Court chose to correct. Convictions on counts 2 and 3 reversed and remanded with instructions to enter a judgment of conviction for one count of second-degree sexual abuse on Count 2; remanded for resentencing; otherwise affirmed.