State v. Perez-Cardenas

“Two guilty verdicts for sexual abuse, based on touching two of the victim’s body parts in a single incident, [should be] merged into a single conviction” State v. Dugan, 282 Or App 768, 769, 387 P3d 439 (2016).

Defendant appealed his convictions for Rape in the First Degree and Sexual Abuse in the First Degree. Defendant assigned error to the trial courts failure to merge his convictions of sexual abuse. On appeal, Defendant argued that the conduct alleged in counts three and four of his indictment occurred during the same criminal episode, without any pause, and thus should have merged, according to ORS 161.067(3). The State conceded that the trial court had plainly erred. “Two guilty verdicts for sexual abuse, based on touching two of the victim’s body parts in a single incident, [should be] merged into a single conviction,” State v. Dugan, 282 Or App 768, 769, 387 P3d 439 (2016). Because the State conceded that existing evidence was insufficient to support a finding of a sufficient pause for separate convictions, the Court held that, under ORS 161.067(3), the convictions should have merged. Reversed and remanded for resentencing; otherwise affirmed.