State v. Bradley

Under ORS 161.067(3), a sufficient pause “occurs when there is 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 [...] criminal intent.”

Petitioner appealed the trial court’s merger ruling. Petitioner argued that the trial court erred when it concluded that it was not legally appropriate to merge the guilty verdicts on Counts 12 and 13. Petitioner asserted that under ORS 161.067(3), the counts should merge because there was not a “sufficient pause” in between the two sexual abuse contacts and that the indictment’s reference to different genitalia did not prevent merger. In response, the State argued that Petitioner’s commission of a separate crime in between Counts 12 and 13 established a sufficient pause for Petitioner to “renounce his criminal intent.” State v. Bradley, 307 Or App 374, 379 (2020). Under ORS 161.067(3), a sufficient pause “occurs when there is 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 [...] criminal intent.” Id. at 381. The Court found that the interruption in the sexual acts occurred after each episode of touching had occurred. Thus, the Court held that no finder of fact could conclude that there was any break or pause in Petitioner’s actions such that it would afford Petitioner the opportunity to renounce his criminal intent. Reversed and remanded for one judgment of conviction and resentencing. DISPOSITION UPDATE 03-10-2021 Reconsideration allowed; former disposition withdrawn; opinion modified and adhered to as modified; convictions on Counts 12-14 reversed and remanded; otherwise affirmed.