State v. Dearmitt

“Where multiple charges arise from a single criminal episode, ‘criminal conduct that violates only one statutory provision will yield only one conviction unless the so called ‘antimerger’ statute, ORS 161.067, operates so as to permit the entry of multiple convictions.’” State v. Reeves, 250 Or App 294, 304, 280 P3d 994 (2012); see also ORS 161.067(3).

Defendant appealed a judgment of conviction in which the trial court separated Counts 4 and 6 of his guilty plea to Sexual Abuse in the Second Degree against the same victim. Defendant assigned error to the trial court's failure to merge the two counts into one conviction. On appeal, Defendant argued that ORS 161.067(3) required the court to merge the two counts into one because the violations all fell under the same statutory provision and occurred during a single episode without the required pause. In response, the State contends that even though both acts were committed during the same episode, those counts should be distinct because each act “caused the victim separate harm stemming from different conduct within that episode.” “Where multiple charges arise from a single criminal episode, ‘criminal conduct that violates only one statutory provision will yield only one conviction unless the so called ‘antimerger’ statute, ORS 161.067, operates so as to permit the entry of multiple convictions.’” State v. Reeves, 250 Or App 294, 304, 280 P3d 994 (2012); see also ORS 161.067(3). The Court held that in order for the antimerger to have applied to this one victim, there needed to be (1) a “sufficient” pause during the criminal conduct to show the change in criminal intent and (2) the sexual conduct had to be of the nature specified within ORS 161.067(3). However, neither of these were found in the record. Therefore, the trial court erred in denying defendant’s request to merge Counts 4 and 6 of his conviction. Reversed and remanded for resentencing.