State v. Crotsley ( 1988 )

RICHARDSON, P. J.

In these two cases, consolidated for appeal, defendant was convicted, after trial to the court, of six sexual offenses which were alleged in two indictments and which arose out of a single incident. He contends that there was not sufficient evidence to sustain the convictions, that three of the convictions should be merged into the other three, and that the court erred in imposing consecutive sentences. We affirm.

It is not necessary to detail the evidence. Essentially, it showed that defendant took the victim, a 14-year-old girl, to his apartment. He used a knife to force her to engage in two separate acts of “deviate sexual intercourse” and then forced her to have sexual intercourse with him. As a result of his activity, defendant was charged in two separate indictments and convicted of six crimes.

In the case under the first indictment, defendant was convicted of one count of rape in the third degree, ORS 163.355(1), and two counts of sodomy in the third degree, ORS 163.385(1), all of which were predicated on the fact that he had engaged in the specified sexual activity with a victim under 16 years of age. In the other case, he was convicted of rape in the first degree, ORS 163.375(1)(a), and two counts of sodomy in the first degree, ORS 163.405(1)(a), predicated on the theory that he subjected the same victim to forcible compulsion while committing the same sexual acts. The court ordered that the sentences for rape in the first degree and one count of sodomy in the first degree be served consecutively. Sentences on the other charges were to be served concurrently with the sentences on the first degree offenses.

Defendant’s first assignment is that the court erred in denying his motion for judgment of acquittal on the first degree rape and sodomy charges. He contends that there was insufficient evidence of forcible compulsion. We disagree. The victim testified that she submitted because defendant held a knife blade to her neck. Her testimony is sufficient evidence to support the first degree convictions.

In his second assignment, defendant contends that the court should have merged the convictions on the charges in one indictment with those in the other. Essentially, he argues that the three convictions related to the age of the victim, rape in the third degree and sodomy in the third degree, should be merged into the convictions based on forcible compulsion, so that he has only three first degree convictions. The trial court denied defendant’s request on the basis of ORS 161.062(1):

“When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations. However, when one of the statutory provisions violated is burglary in any degree, and the other statutory provision violated is theft or criminal mischief in any degree, and the theft or criminal mischief was pleaded as the intended crime of the burglary, the burglary and the theft or criminal mischief shall constitute only one punishable offense.”¹

The statute was adopted as a response to the judicially expressed concern for the lack of legislative guidance. See, e.g., State v. Linthwaite, 295 Or 162, 665 P2d 863 (1983); State v. Cloutier, 286 Or 579, 596 P2d 1278 (1979). The obvious legislative design was to develop a clear formulation for the “merger” of convictions when an offender’s conduct violates more than one criminal statute. The statute authorizes separate convictions when the same conduct (1) violates two or more statutory provisions, if (2) each provision requires proof of an element that the other does not.

As the trial court recognized, defendant’s conduct fits the formulation of the statute precisely. The third degree rape and the two third degree sodomies require proof that the victim was under 16 years of age, but the first degree offenses do not. On the other hand, the first degree rape and sodomies require proof that the victim, regardless of her age, was subjected to forcible compulsion.

Defendant argues that the third degree offenses are merely lesser degrees of rape and sodomy described as first degree offenses and as such have traditionally been merged into the greater offenses. Cases that he cites in support of his contention predate the enactment of ORS 161.062. See, e.g., State v. Kessler, 297 Or 460, 686 P2d 345 (1984); State v. Linthwaite, supra; State v. Cloutier, supra; State v. Wigget, 75 Or App 474, 707 P2d 101 (1985). Those cases decided the issue on the basis of discovered legislative intent and were part of the reason for the adoption of ORS 161.062. Consequently, they are not indications of legislative intent respecting that enactment. The statute is not ambiguous, and the trial court did not err in applying it in this case.

The final assignment is that imposition of consecutive sentences for first degree rape and first degree sodomy is unlawful under ORS 137.122. The court made the specific findings required by subsection (4) of that statute that the sodomy was not merely an incidental violation in the course of committing the crime of rape, that it caused a greater and qualitatively different degree of harm to the victim and that concurrent terms would not be commensurate with the seriousness of defendant’s conduct or sufficient to protect the public. There was evidence presented during trial and the sentencing hearing to support the court’s findings and sentences.

Affirmed.

1 ORS 161.062(1) is almost identical to ORS 161.067(1) which was adopted by an initiative measure, Ballot Measure No. 10, in the 1986 general election and became effective December 4,1986. Defendant was sentenced before that date.