State v. Howe

Pursuant to ORS 161.067(3) a defendant's multiple count assault convictions must be merged. To prevent merging, the state must show that there was a sufficient pause in the defendant's conduct to permit an opportunity for defendant to renounce the criminal intent of his conduct, and that, despite this pause, defendant continued to engage in criminal activity.

Defendant appealed his conviction of three counts of using a child in display of sexually explicit conduct, stating that the trial court erred in dismissing his motion to acquit two of the three counts. Defendant also assigns error to the trial court for not combining the three convictions into one. Defendant lured a seventeen year old girl into his apartment where she was told to go into Defendant's bedroom at one point and three of his friends then sexually assaulted the victim while Defendant recorded the assault. Defendant argued that the documentation came from one, single sexual act involving multiple partners. The Court held that, because the standard of review is in the light most favorable to the state, the conduct could be considered as three separate sex acts with the three partners. The Court also held that, pursuant to ORS 161.067(3), the focus needs to be on a sufficient pause in the conduct of the defendant between each guilty verdict, giving the opportunity to renounce criminal intent, and not focus on whether there was sufficient pause between the conduct of other actors. Therefore, the Court held that the verdicts should be merged. Remanded for re-sentencing and otherwise affirmed.