State v. White , 301 Or. App. 74 ( 2019 )

74
Argued and submitted May 22, 2018, affirmed December 4, 2019, petition for
review denied March 26, 2020 (366 Or 259)
STATE OF OREGON,
Plaintiff-Respondent,
v.
LARAY LARONE WHITE,
Defendant-Appellant.
Clackamas County Circuit Court
15CR57216; A163155
455 P3d 969
Defendant appeals a judgment convicting him of nine offenses, six of which
are at issue on appeal. Defendant argues that the trial court plainly erred by
failing to merge his guilty verdicts for compelling prostitution, promoting prosti-
tution, and trafficking in persons into a single conviction and by failing to merge
his guilty verdicts for unauthorized use of a vehicle, theft in the second degree,
and robbery in the third degree into a single conviction. The state contends that
the court did not err under the merger statute and, alternatively, that any poten-
tial error is not plain. Held: The trial court did not err. It is not beyond dispute
that the court was required to merge defendant’s guilty verdicts as he contends;
accordingly, any error by the court was not plain error.
Affirmed.
Jeffrey S. Jones, Judge.
George W. Kelly argued the cause and filed the brief for
appellant.
Greg Rios, Assistant Attorney General, argued the cause
for respondent. Also on the brief were Ellen F. Rosenblum,
Attorney General, and Benjamin Gutman, Solicitor General.
Before DeHoog, Presiding Judge, and Aoyagi, Judge, and
Hadlock, Judge pro tempore.
DEHOOG, P. J.
Affirmed.
Cite as 301 Or App 74 (2019) 75
DEHOOG, J.
Defendant appeals a judgment convicting him of
nine offenses. Six of those convictions are at issue on appeal:
Count 1 (compelling prostitution, ORS 167.017(1)(a)); Count 2
(promoting prostitution, ORS 167.012(1)(b)); Count 3 (traf-
ficking in persons, ORS 163.266(1)(b)); Count 4 (unautho-
rized use of a vehicle, ORS 164.135 (2015), amended by Or
Laws 2019, ch 530, § 11); Count 8 (third-degree robbery,
ORS 164.395(1)(a)); and Count 9 (second-degree theft, ORS
164.045(1)(b)). Defendant raises two assignments of error.
In his second assignment of error, defendant contends that
the trial court committed plain error by failing to merge
(1) the jury’s verdicts of guilty on Counts 1, 2, and 3 into a
single conviction; and (2) the jury’s guilty verdicts on Counts
4, 8, and 9 into a single conviction. The state contends that
merger is not appropriate, because each of the counts on
which defendant was convicted required proof of an element
that the others did not. In the alternative, the state responds
that neither error asserted under this assignment is suffi-
ciently obvious from the record so as to be plain. For the
reasons that follow, we conclude that, to the extent that the
trial court may have committed error with respect to defen-
dant’s merger arguments, any such error is not sufficiently
obvious so as to constitute plain error. Accordingly, we reject
defendant’s second assignment of error and affirm.2
We review a trial court’s merger rulings for legal
error. State v. Dearmitt, 299 Or App 22, 24, 448 P3d 1163
(2019). We state the facts underlying those rulings in the
“light most favorable to the state; that is, in the light most
1
The changes to ORS 164.135 do not become effective until January 1, 2020.
Accordingly, they have no bearing on this case. All references to ORS 164.135 in
this opinion are to the 2015 version of that statute.
2
In his first assignment of error, defendant contends that the trial court
erred in denying his motion for judgment of acquittal on Counts 1, 2, and 3.
Although defendant argued to the trial court that the evidence was not suffi-
cient to support verdicts of guilty as to those counts, his argument on appeal
that online “posting” of escort services does not, as a matter of law, constitute
an act of prostitution is wholly different from the argument presented to the
trial court. Thus, we conclude that defendant did not preserve the argument
he advances on appeal. Moreover, defendant does not seek plain error review
as to his first assignment of error. Accordingly, we reject it without further
discussion.
76 State v. White
favorable to the trial court’s conclusion that merger was not
required.” Id.Defendant and the victim, who at the time was
defendant’s girlfriend, began their relationship in 2011,
when they lived in the Portland area. During that relation-
ship, the two also lived together in Sacramento, California,
where at least one instance of domestic violence occurred.
Defendant was the father of the victim’s youngest child.
Over the course of their relationship, the victim would, at
times, use an online forum, backpage.com, to “post” her
availability for escort services. Shortly before the events in
this case, the couple lived in Sacramento. Wanting to return
home and be near family, because defendant had been abu-
sive and had “pimped her out,” the victim drove to Portland
with her children, leaving defendant behind. Defendant,
however, eventually joined the victim in Portland after
demanding that she purchase an airline ticket for him. The
day after his arrival, defendant told the victim that they
were going to drive the children to a family member’s house
so that the victim could post her availability online. As the
two were returning to their motel after having dropped
the children off, defendant noticed that the victim was not
using her cellphone to post her availability, as defendant
expected her to do. Defendant reacted by grabbing the vic-
tim by the hair and telling her to “fucking post, bitch.” In
response, the victim posted an advertisement for “dates” on
backpage.com. Later the same day, a man who had responded
to the victim’s listing showed up at the couple’s motel room as
he had arranged with the victim. However, when he arrived
the victim told him that she no longer wanted to go through
with the date, because she was being forced to do it. The man
did not press the issue and, upon leaving sometime later,
gave the victim $100. After the man had gone, defendant
re-entered the couple’s motel room and angrily confronted
the victim about how long the “date” had taken. He put his
hand around the victim’s throat and squeezed for about four
seconds, only stopping when she pointed to the $100 that
the man had left on a table. Defendant took the money; he
also took the victim’s car keys and an additional $500 that
he found in her purse, neither of which the victim had said
he could take. After defendant drove off in the victim’s car,
Cite as 301 Or App 74 (2019) 77
she contacted the police. A jury subsequently found defen-
dant guilty of all of the charges arising from those events,
including the six at issue on appeal (compelling prostitution,
promoting prostitution, trafficking in persons, unauthorized
use of a vehicle, robbery in the third degree, and theft in the
second degree). The trial court then entered separate con-
victions on all nine counts, and imposed a separate sentence
on each conviction.
We proceed with defendant’s argument that the trial
court plainly erred in not merging six of the nine counts in
various ways. Generally, “[n]o matter claimed as error will
be considered on appeal unless the claim of error was pre-
served in the lower court.” ORAP 5.45(1). That being said,
we may exercise our discretion to review an unpreserved
error, so long as it is a plain error. Id. “To qualify as plain
error, an asserted error must be (1) one of law; (2) it must be
apparent, i.e., the point must be obvious, not reasonably in
dispute; and (3) it must appear on the face of the record[.]”
State v. Serrano, 355 Or 172, 179, 324 P3d 1274 (2014) (inter-
nal quotation marks omitted). An error is apparent on the
face of the record if we do “not need to go outside the record
to identify the error or choose between competing inferences,
and the facts constituting the error [are] irrefutable.” Id.(internal quotation marks omitted). With those standards in
mind, we turn to defendant’s contention that the trial court
plainly erred.
Merger is governed by ORS 161.067, which requires
that a court merge multiple guilty verdicts that arise out
of the same conduct or criminal episode, except under cer-
tain circumstances. State v. Gensitskiy, 365 Or 263, 281, 446
P3d 26 (2019). ORS 161.067 effectively creates a presump-
tion that multiple statutory violations based on the same
conduct or criminal episode will result in only one convic-
tion; it establishes, however, certain circumstances that bar
merger, and if they exist, the sentencing court must enter a
separate conviction for each count on which the defendant
has been found guilty. Id. at 281, 281 n 5. As relevant here,
when the criminal conduct or episode in question violates
two or more statutory provisions, ORS 161.067(1) limits a
court’s authority to merge counts. Id. at 265-66. Specifically,
ORS 161.067(1) provides:
78 State v. White
“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 statu-
tory violations.”
(Emphasis added.)
Thus, in determining whether to merge verdicts
resulting from the violation of multiple statutory provisions,
a court must compare the material elements that the state
was required to prove as to each charge. In making that
comparison, we typically consider only the statutory ele-
ments of each offense, not “the underlying factual circum-
stances recited in the indictment.” State v. Fujimoto, 266 Or
App 353, 357, 338 P3d 180 (2014). “However, when a statute
contains alternative forms a of single crime, we use the ele-
ments of the charged version in the merger analysis.” Id.(internal quotation marks omitted).
We apply those standards in considering defendant’s
argument that the trial court plainly erred when it did not
merge the jury’s guilty verdicts as to certain of his charges.
We quickly dispose of two aspects of that argument. First, we
conclude, for reasons that do not require further discussion,
that the trial court did not plainly err by entering separate
convictions based upon the jury’s guilty verdicts on Counts 4,
8, and 9.3 Second, we conclude that the court did not commit
3
As noted, Count 4 of the indictment charged defendant with unautho-
rized use of a vehicle, ORS 164.135, Count 8 charged third-degree robbery, ORS
164.395(1)(a), and Count 9 charged second-degree theft, ORS 164.045(1)(b).
ORS 164.135 provides, in relevant part, as follows:
“(1) A person commits the crime of unauthorized use of a vehicle when:
“(a) The person takes, operates, exercises control over, rides in or other-
wise uses another′s vehicle, boat or aircraft without consent of the owner[.]”
ORS 164.395 provides, in relevant part:
“(1) A person commits the crime of robbery in the third degree if in the
course of committing or attempting to commit theft or unauthorized use of a
vehicle as defined in ORS 164.135 the person uses or threatens the immedi-
ate use of physical force upon another person with the intent of:
“(a) Preventing or overcoming resistance to the taking of the property or
to retention thereof immediately after the taking; or
“(b) Compelling the owner of such property or another person to deliver
the property or to engage in other conduct which might aid in the commission
of the theft or unauthorized use of a vehicle.”
Cite as 301 Or App 74 (2019) 79
plain error in not merging Count 1 (compelling prostitution)
and Count 3 (trafficking in persons). As to those counts, it is
not obvious that, under ORS 161.067(1), separate convictions
are not appropriate when a person engages in conduct that
constitutes both compelling prostitution and trafficking in
persons. Defendant contends that it is obvious that conduct
constituting trafficking in persons under the statutory the-
ory advanced in his case—requiring proof of knowledge or
reckless disregard of the fact that force, fraud, or coercion
would be used to cause another to engage in a commercial sex
act (meaning sexual conduct or contact for consideration)—
necessarily encompasses every element of compelling pros-
titution. We disagree. It is not beyond dispute that ORS
167.017(1)(a)4 (compelling prostitution) does not require
proof of an element not encompassed by ORS 163.266(1)(b)5
(trafficking in persons), specifically, a completed act of com-
pulsion. Furthermore, defendant does not contend that every
element of trafficking, as charged, is encompassed by com-
pelling. Thus, it is not obvious that those two counts do not
involve multiple statutory violations under which “each pro-
vision requires proof of an element that the other[ ] do[es]
not,” ORS 161.067(1), and any error in not merging the jury’s
verdicts as to those counts is therefore not plain.
Finally, ORS 164.045 provides:
“(1) A person commits the crime of theft in the second degree if:
“(a) By means other than extortion, the person commits theft as defined
in ORS 164.015; and
“(b) The total value of the property in a single or aggregate transaction
is $100 or more and less than $1,000.”
4
ORS 167.017 provides, in part:
“(1) A person commits the crime of compelling prostitution if the person
knowingly:
“(a) Uses force or intimidation to compel another to engage in prostitu-
tion or attempted prostitution[.]”
5
ORS 163.266 provides, in part:
“(1) A person commits the crime of trafficking in persons if the person
knowingly recruits, entices, harbors, transports, provides or obtains by any
means, or attempts to recruit, entice, harbor, transport, provide or obtain by
any means, another person and:
“* * * * *
“(b) The person knows or recklessly disregards the fact that force, fraud
or coercion will be used to cause the other person to engage in a commercial
sex act[.]”
80 State v. White
With those arguments summarily addressed, we
turn to discuss at somewhat greater length defendant’s
remaining argument, which is that the trial court plainly
erred in failing to merge the jury’s guilty verdicts on
Count 1 (compelling prostitution) and Count 2 (promoting
prostitution). According to defendant, he cannot be sep-
arately convicted on each of those two counts because his
conviction for compelling prostitution, ORS 167.017(1)(a),
encompasses every element of his charge for promoting
prostitution, ORS 167.012(1)(b), and, therefore, only one
conviction is permitted. Again, the applicable standard is
whether each statutory provision “requires proof of an ele-
ment that the other[ ] do[es] not.” ORS 161.067(1). Although
the statutory provisions at issue here provide alternative
theories of prosecution, our analysis is limited to those
alternatives relied on in the indictment. Fujimoto, 266 Or
App at 357. Here, the state prosecuted defendant for com-
pelling prostitution under ORS 167.017(1)(a), which requires
proof that the person knowingly used force or intimidation
to compel another to engage in prostitution or attempted
prostitution. Defendant’s charge for promoting prostitu-
tion was, in turn, prosecuted under ORS 167.012(1)(b),
which requires proof that the person, “with intent to pro-
mote prostitution,” knowingly induced or caused another
person to engage in prostitution or to remain in a place of
prostitution.
Thus, as charged, the question reduces to whether
one who knowingly uses force or intimidation to compel
another to engage in prostitution necessarily also, and “with
intent to promote prostitution,” knowingly induces or causes
a person to engage in prostitution. There appears to be little
question that one who “compels” another to do something
necessarily “induces or causes” that same thing. What is less
clear is whether knowingly compelling prostitution encom-
passes the intent-to-promote-prostitution aspect of promot-
ing prostitution under ORS 167.012(1)(b). Although, on its
face, the compelling prostitution statute does not require
proof of “the intent to promote prostitution,” our case law
provides a plausible argument that the “intent to promote
prostitution” provision of ORS 167.012(1)(b) is subsumed
by proof that a person compelled prostitution under ORS
Cite as 301 Or App 74 (2019) 81
167.017(1)(a), and so cannot be construed to require proof of
an element that ORS 167.017(1)(a) does not.
Specifically, in State v. Vargas-Torres, 237 Or App
619, 625, 242 P3d 619 (2010), we observed that “[a]ccording
to the commentary [to the criminal code], compelling pros-
titution is an aggravated form of promoting prostitution.” 6
That characterization arguably suggests that, at least as to
the statutory subsections at issue here, the legislature did
not intend its reference to “intent to promote prostitution”
in ORS 167.012(1)(b) to require proof of something that a
charge of compelling prostitution did not. Notwithstanding
our decision in Vargas-Torres, however, we cannot conclude
that it is obvious that the jury’s guilty verdict on defendant’s
promoting prostitution charge must merge with its verdict
on his charge for compelling prostitution. In Vargas-Torres,
we did not have occasion to directly grapple with the “intent
to promote prostitution” provision of ORS 167.012(1)(b). We
cannot say that, were we to construe that provision in a case
in which the question of its meaning had been properly pre-
served and meaningfully briefed by the parties, we would
necessarily conclude that it did not establish an element not
encompassed by the elements of the compelling prostitution
statute. As a result, neither our discussion in Vargas-Torres,
nor anything else brought to our attention by defendant in
the course of seeking to establish plain error, persuades us
that it is beyond reasonable dispute that the trial court was
required to merge the jury’s guilty verdicts as to Counts 1
and 2.
Affirmed.
6
That commentary states that compelling prostitution “particularizes three
forms of promoting prostitution considered aggravating factors serving to
increase the seriousness of the offense.” Commentary to Criminal Law Revision
Commission Proposed Oregon Criminal Code, Final Draft and Report § 252, 242
(July 1970).