State v. Loving

“Touching separate parts of a victim’s body is not, by itself, sufficient to preclude merge of convictions under ORS 161.067(3).” State v. Nelson, 282 Or. App. 427, 436-42, 386 P.3d 73, 79-82 (2016). “Rather, the State must introduce evidence from which the trier of fact could draw a nonspeculative inference that there was a sufficient pause between the acts constituting sexual abuse.” Id. at 446-47.

Defendant appealed a conviction for two counts of first-degree sexual abuse. Defendant assigned error to the trial court for failing to merge the guilty verdicts on those counts into a single conviction. Defendant argued under ORS 161.067(3), the trial court was required to merge the verdicts because the record did not establish a pause between the acts to prevent the merger of the verdicts. In response, the State argued that the verdicts should not be merged because touching two separate body parts of a victim’s body are not part of “the same conduct or criminal episode” and cannot be merged. “Touching separate parts of a victim’s body is not, by itself, sufficient to preclude merge of convictions under ORS 161.067(3).” State v. Nelson, 282 Or. App. 427, 436-42, 386 P.3d 73, 79-82 (2016). “Rather, the State must introduce evidence from which the trier of fact could draw a non-speculative inference that there was a sufficient [enough] pause between [of] the acts, constituting sexual abuse.” Id. at 446-47. The Court of Appeals held that no rational trier of fact could draw a non-speculative inference that there was a pause between Defendant’s acts of touching. Thus, the trial court erred in failing to merge the guilty verdicts and exercised its discretion to correct the error. Reversed and remanded for entry of a judgment of conviction for one count of first-degree sexual abuse; remanded for resentencing; otherwise affirmed.