State v. Ortiz-Rico

For ORS 161.067(3), a “sufficient pause” is considered “a temporary or brief cessation of a defendant’s criminal conduct that occurs between repeated violations and is so marked in scope or quality that it affords a defendant the opportunity to renounce his or her criminal intent.” State v. Huffman, 234 Or App 177, 184, 227 P3d 1206 (2010).

Defendant appealed his convictions of Counts 1-4 for first-degree rape and Counts 5-8 for first-degree sexual abuse. On appeal, Defendant argued the trial court committed error when it failed to merge his guilty verdicts for Counts 1-4 into one conviction and for Counts 5-8 into one conviction because when the criminal acts were not separated by a “sufficient pause” in conduct, merger was required under ORS 161.067(3). In response, the State argued each rape and sexual assault were separated by sufficient pauses where there was an opportunity for Defendant “to renounce his criminal intent.” For ORS 161.067(3), a “sufficient pause” is considered “a temporary or brief cessation of a defendant’s criminal conduct that occurs between repeated violations and is so marked in scope or quality that it affords a defendant the opportunity to renounce his or her criminal intent.” State v. Huffman, 234 Or App 177, 184, 227 P3d 1206 (2010). The court found the evidence supported the trial court’s finding there was sufficient pause between the first rape occurring in the front seat of the car (Count 1) and the second occurring in the back seat (Count 3) and the corresponding sexual abuse convictions (Counts 5 and 7). For the remaining convictions (Counts 2, 4, 6 and 8), the trial court did not make findings on merger and the Court vacated and remanded those convictions but otherwise affirmed.