State v. D. M. B. , 300 Or. App. 817 ( 2019 )

817
Submitted November 1; judgment reversed and remanded for entry of a
judgment reflecting adjudication for a single count of second-degree sexual
abuse, otherwise affirmed November 27, 2019
In the Matter of D. M. B.,
a Youth.
STATE OF OREGON,
Respondent,
v.
D. M. B.,
Appellant.
Clackamas County Circuit Court
18JU05047; A169886
452 P3d 1084
Colleen F. Gilmartin, Judge pro tempore.
Matthew J. Steven filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Daniel Norris, Assistant Attorney
General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Aoyagi, Judge.
PER CURIAM
Judgment reversed and remanded for entry of a judgment
reflecting adjudication for a single count of second-degree
sexual abuse; otherwise affirmed.
818 State v. D. M. B.
PER CURIAM
Youth was found to be within the jurisdiction of the
juvenile court for committing an act that, if committed by an
adult, would constitute rape in the third degree, ORS 163.355
and sexual abuse in the second degree, ORS 163.415. On
appeal, youth argues that the juvenile court plainly erred in
failing to merge his adjudication for rape in the third degree
into his adjudication for sexual abuse in the second degree.
The state concedes that, under ORS 161.067(1) and State v.
Breshears, 281 Or App 552, 555, 383 P3d 345 (2016), when
the same conduct violates two statutory provisions, they are
separately punishable only if each provision requires proof
of an element that the other does not, and because “proof of
the elements of third-degree rape will necessarily prove the
elements of second-degree sexual abuse,” id. at 559, these
adjudications should have merged. See State v. K. R. S., 298
Or App 318, 331, 449 P3d 511 (2019) (juvenile adjudications
are subject to merger under ORS 161.067). We agree, accept
the state’s concession, and exercise our discretion to correct
plain error.
Judgment reversed and remanded for entry of a
judgment reflecting adjudication for a single count of second-
degree sexual abuse; otherwise affirmed.