State v. Dugan

Under ORS 161.067(3), merger of guilty verdicts is required for crimes that are (1) committed in a single criminal episode, (2) violate only one statutory provision, (3) involve only one victim, and (4) are not separated by sufficient pause to afford the defendant an opportunity to renounce his criminal intent.

Defendant appealed the trial court’s judgment of conviction of two counts of first-degree sexual abuse, ORS 163.427. Defendant assigned error to the trial court’s failure to merge the guilty verdicts on the two counts as required by ORS 161.067(3). On appeal, Defendant argued that his guilty verdicts must merge because the record did not show that there was sufficient time to afford Defendant an opportunity to renounce his criminal intent.  The State argued that the verdicts should not merge because "defendant committed the crime in two different ways: one by touching victims vaginal area; and one by touching her breast." Under ORS 161.067(3), merger of guilty verdicts is required for crimes that are (1) committed in a single criminal episode, (2) violate only one statutory provision, (3) involve only one victim, and (4) are not separated by "sufficient pause" to afford the defendant an opportunity to renounce his criminal intent.  The Court held that for repeated violations to be separately punishable, "one crime must end before another begins." State v. Huffman, 234 OR App 177, 184 (2010). Convictions on Courts 1 and 2 reversed and remanded with instructions to enter judgment of conviction for one count of first-degree sexual abuse; remanded for resentencing.