State v. Ortiz-Rico , 303 Or. App. 78 ( 2020 )

78
Submitted July 30, 2018; convictions on Counts 2, 4, 6, and 8 vacated and
remanded; remanded for resentencing, otherwise affirmed March 18; petition
for review denied August 27, 2020 (366 Or 827)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOSE OMAR ORTIZ-RICO,
Defendant-Appellant.
Washington County Circuit Court
16CR49970; A163380
462 P3d 741
Defendant appeals a judgment of conviction for, among other offenses, four
counts of first-degree rape (Counts 1 through 4) and four counts of first-degree
sexual abuse (Counts 5 through 8). In several assignments of error, defendant
argues that the trial court erred in failing to merge the guilty verdicts in Counts 1
through 4 and in failing to merge the guilty verdicts in Counts 5 through 8.
Defendant argues that merger is required because, under ORS 161.067(3), the
underlying criminal acts were not separated by sufficient pauses in his conduct.
Held: The trial court did not err in declining to merge Counts 1 and 3 or Counts 5
and 7. As to the remaining counts, however, the trial court declined to make
factual findings regarding merger. Therefore, the Court of Appeals vacated
and remanded those convictions for further consideration of merger under ORS
161.067(3).
Convictions on Counts 2, 4, 6, and 8 vacated and remanded; remanded for
resentencing; otherwise affirmed.
Janelle F. Wipper, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rolf C. Moan, Assistant Attorney
General, filed the brief for respondent.
Before DeHoog, Presiding Judge, and DeVore, Judge, and
Aoyagi, Judge.
DEHOOG, P. J.
Convictions on Counts 2, 4, 6, and 8 vacated and
remanded; remanded for resentencing; otherwise affirmed.
Cite as 303 Or App 78 (2020) 79
DEHOOG, P. J.
Defendant appeals a judgment of conviction for,
among other offenses, four counts of first-degree rape (Counts 1
through 4), ORS 163.375, and four counts of first-degree sex-
ual abuse (Counts 5 through 8), ORS 163.427.1 We write to
address defendant’s second through seventh assignments of
error, in which he makes a combined argument that the trial
court erred in failing to merge the guilty verdicts in Counts 1
through 4 into a single conviction for first-degree rape and
in failing to merge Counts 5 through 8 into a single convic-
tion for first-degree sexual abuse.2 Defendant alternatively
argues that the court erred in failing to merge Count 1 with
Count 2, Count 3 with Count 4, Count 5 with Count 6, and
Count 7 with Count 8, resulting in only two rape and two
sexual-abuse convictions. Defendant contends that merger is
required under ORS 161.067(3) because the underlying crim-
inal acts perpetrated against the victim, K, were not sep-
arated by sufficient pauses in his conduct. For the reasons
that follow, we conclude that the trial court did not err in
declining to merge Counts 1 and 3. In light of our conclusion
regarding Counts 1 and 3, it also was not error for the trial
court to decline to merge Counts 5 and 7, as the conduct that
constituted the rape charges also constituted the sexual-
abuse charges. Furthermore, defendant’s argument that
the trial court should have entered only single convictions
for rape and sexual abuse also necessarily fails. However,
as we further explain, we are unable to determine whether
merger was appropriate in any way with regard to Counts 2,
4, 6, and 8. Therefore, we vacate defendant’s convictions as
to those counts, remand for further consideration of merger,
and remand for resentencing. We otherwise affirm.3
1
As we understand the record, the state prosecuted the conduct underlying
each of the rape counts as both rape and sexual abuse, such that Count 1 (first-
degree rape) and Count 5 (first-degree sexual abuse) involved the same conduct,
as did Counts 2 and 6, 3 and 7, and 4 and 8.
2
In his first assignment of error, defendant contends that, in a manner
analogous to erroneously instructing the jury, the trial court erred when, in
reaching its verdict, it determined that a drug-induced psychosis could not con-
stitute a mental disease or defect. We reject that assignment of error without
further discussion.
3
Our description of the record on appeal is not intended to limit the trial
court’s assessment of the record when, on remand, it makes the findings of fact
from which it will draw its legal conclusions.
80 State v. Ortiz-Rico
Because defendant was found guilty, we state the
facts underlying the trial court’s rulings “in the light most
favorable to the state; that is, in the light most favorable to
the trial court’s conclusion that merger was not required.”
State v. Dearmitt, 299 Or App 22, 24, 448 P3d 1163 (2019).
Defendant and K were former high school friends
who had not seen each other for nearly 10 years when defen-
dant contacted K through Facebook. The two decided to
meet in person and, in fact, met for about an hour at K’s
house. Defendant told K that he might have some upcoming
work opportunities for her. About a week later, defendant
called K and said that he wanted to talk to her about one of
those opportunities. K agreed to meet defendant at a store
near her house.
When K arrived at the store, she found defendant
seated in his car and got in with him. Defendant told K that
he needed to drop some things off at his own house, which K
thought was nearby, and drove off with K in his car. When
defendant drove further than K had anticipated, K became
uncomfortable and told defendant that she needed to go
home. Defendant ignored K and continued driving.
When they arrived at defendant’s house, K refused
his request to go inside with him, which appeared to anger
defendant. About 15 minutes later, defendant returned, got
back in the car, and sped off with K. K tried to call a friend
on her cell phone, but defendant snatched the phone from
her hands, tore it apart, and tossed the pieces into the back
seat.
Defendant eventually pulled his car off the road
and drove into a secluded area, where K attempted to get
out. Defendant responded by hitting K in the face, pulling
her car door closed, and repeatedly hitting her when she
tried to fight back. K screamed and defendant reacted by
covering her mouth with his hands, putting his bodyweight
on her, and telling her to “shut up.” Defendant then forcibly
raped K as he held her down.
It was light outside when that rape began. Defendant
continued to rape K in the front seat of his car over a course
of hours, but he had trouble maintaining an erection, and,
Cite as 303 Or App 78 (2020) 81
according to K, he did not ejaculate.4 By the time defendant
stopped, it was dark.
K recalled defendant next moving some tools from
the back seat to the rear floorboard and then climbing into
the back seat. At that time, K again attempted to escape
through the passenger door, but defendant dragged her into
the back seat with him, moving some more tools to the front
to make room. K told defendant that she was too swollen for
him to penetrate her and that it hurt too much to continue,
but he raped her again anyway. That second rape continued
for about 30 minutes, after which defendant stopped long
enough for K to fall asleep, which she did, lying either on her
side or her stomach.
When K awoke, defendant was attempting to rape
her a third time, this time from behind. Again defendant
was unable to maintain an erection, and again K pleaded
with him to stop because he was hurting her too much.
Despite renewed efforts by K to fight defendant off, he ulti-
mately succeeded in penetrating her again.
After raping K that third time, defendant tried
forcing her to perform oral sex on him by pushing her head
down and standing up slightly. K cried and said that she did
not want to, asking defendant how he could do this to her
when they had known each other for so long. Nonetheless,
defendant persisted and eventually succeeded in forcing K
to perform oral sex. After he did so, defendant raped K a
fourth time, by which time it had begun to get light. To K’s
knowledge, defendant never ejaculated.
As a result of defendant’s conduct against K, he
was charged with, among other things, the four counts of
rape and four counts of sexual abuse at issue in this appeal.
Defendant waived his right to a jury and, following a bench
trial in which K testified to the foregoing events, the trial
court found defendant guilty on all counts. At sentencing,
defendant argued that the court should merge the guilty
verdicts in Counts 1 through 4 into a single conviction for
first-degree rape and the guilty verdicts in Counts 5 through
4
As the state notes, ejaculation, or “emission,” is not required to complete the
crime of rape. ORS 163.375; ORS 163.305(7).
82 State v. Ortiz-Rico
8 into a single conviction for first-degree sexual abuse. The
trial court rejected that request, stating:
“What I am going to do to make sure that this survives any
sort of appeal issues, that I find—because specifically that
we are talking about an episode that happened for over
eight hours, and because we are talking about [K] being
moved from the front seat and the back seat—to me, that
also shows an interruption of criminal behavior—that this
is appropriate for some sort of consecutive sentence.
“It is obvious to this Court that this criminal offense for
which the consecutive sentence is contemplated, was not
merely an incidental violation of separate statutory pro-
vision in the course of the commission of a more serious
crime, but rather an indication of the defendant’s willing-
ness to commit more than one criminal offense.
“And—because of the length of time, and the fact that the
victim was moved from one area of the car, this caused and
created a risk of causing greater quantitatively different
loss, injury or harm to the victim.” 5
The court then sentenced defendant, entering sepa-
rate convictions on all counts and running the sentence for
Count 3 consecutive to the sentence imposed on Count 2.
“Count 3 is Rape in the First Degree, 100 months Measure
11 time. That will be consecutive to Count 1 and Count 2.
* * * Again, for the record, I am using Count 3 to identify as
the count that shows the rape in the back seat.” 6
Defendant asked the trial court whether it was specifically
finding that Count 3 had been a separate act, and the court
5
We note that the court, in making its ruling, used language from ORS
137.123, which governs the imposition of consecutive sentences. We have held
that it is an error for a trial court to consider consecutive sentencing pursuant to
ORS 137.123 without first making a merger determination under ORS 161.067.
State v. Stanton, 266 Or App 374, 379, 337 P3d 955 (2014). In this case, however,
it appears from the record that the court considered both merger and consecutive
sentences in making its ruling as to Count 3. That is, though the court used
language from ORS 137.123, the court also remarked that the facts “show[ed] an
interruption of criminal behavior.” That statement, in the context of the merger
and sentencing arguments presented by the parties, suggests that the court
properly conducted a merger analysis as to that count.
6
We understand the trial court to have considered the second alleged rape—
that is, the rape that occurred after defendant moved K from the front seat to the
back seat of the car—as Count 3. Therefore, we do the same.
Cite as 303 Or App 78 (2020) 83
affirmed that it was. Defendant next asked whether the
court was finding that Counts 1 and 2 had been the same
act. The court replied that it was “not making that find-
ing.” When defendant asked the court to clarify that it was
“not making any ruling as far as that it was a separate
act or that it was from the same act,” the court responded,
“Correct.” Defendant then objected and argued that, in
the absence of such a finding, Count 2 should merge with
Count 1. Defendant further argued that Count 4 should
merge with Count 3, and that the court should apply the
same analysis to the corresponding sexual-abuse charges.
The court noted defendant’s objection but declined to do so.
On appeal, defendant renews his merger argu-
ment. Specifically, citing ORS 161.067(3), defendant argues
that the guilty verdicts from Counts 1 through 4 should
all merge into a single conviction for first-degree rape and
that the guilty verdicts from Counts 5 through 8 should all
merge into a single conviction for first-degree sexual abuse.
That, defendant argues, is required because the acts under-
lying his multiple violations of the same statutes were not
separated by a “sufficient pause” in his criminal conduct to
warrant separate convictions. In the alternative, defendant
argues that, even if his act of moving K from the front seat
to the back seat of the car created a sufficient pause for pur-
poses of ORS 161.067(3), the remaining rape counts arising
from his conduct in each location should merge, as should
the related sexual-abuse charges.7
The state responds that the record justified the
trial court’s entry of four convictions for first-degree rape
because (1) defendant’s multiple acts of rape occurred over
the course of eight hours; (2) “each rape was complete before
the next began”; and (3) each rape “was separated from the
next rape by (a) a significant temporal break; (b) conduct
by defendant that constituted a crime other than rape;
(c) discussion between defendant and the victim during
which the victim tried to dissuade defendant from harm-
ing her further; or (d) a combination of some or all of those
factors.” As such, the state contends that each rape was
7
Defendant does not dispute that, if any pair of rape charges do not merge,
the corresponding pair of sexual-abuse charges likewise do not merge.
84 State v. Ortiz-Rico
separated by a sufficient pause in which defendant had an
opportunity to renounce his criminal intent. For largely the
same reasons, the state contends that the trial court did not
err in entering separate convictions for first-degree sexual
abuse on Counts 5 through 8.8
We review the trial court’s merger rulings for legal
error. Dearmitt, 299 Or App at 24 (applying that standard).
In reviewing merger rulings, we are bound by the trial
court’s factual findings, so long as there is constitutionally
sufficient evidence in the record to support them. State v.
West-Howell, 282 Or App 393, 397, 385 P3d 1121 (2016),
rev den, 361 Or 312 (2017).
When, as here, multiple charges arise from a single
criminal episode, “criminal conduct that violates only one
statutory provision will yield only one conviction unless the
so-called ‘antimerger’ statute, ORS 161.067, operates so as
to permit the entry of multiple convictions.” State v. Reeves,
250 Or App 294, 304, 280 P3d 994, rev den, 352 Or 565(2012). ORS 161.067(3) provides, in part:
“When the same conduct or criminal episode violates
only one statutory provision and involves only one victim,
but nevertheless involves repeated violations of the same
statutory provision against the same victim, there are as
many separately punishable offenses as there are viola-
tions, except that each violation, to be separately punish-
able under this subsection, must be separated from other
such violations by a sufficient pause in the defendant’s
criminal conduct to afford the defendant an opportunity to
renounce the criminal intent.” 9
(Emphasis added.)
Thus, under ORS 161.067(3), criminal conduct
occurring within the course of a single criminal episode and
violating only one statutory provision can result in multi-
ple convictions, but only if each violation of the statute is
8
The state also notes that each count of sexual abuse in the indictment was
alleged to have been part of the same act that constituted a corresponding count
of first-degree rape, as alleged in Counts 1 through 4.
9
ORS 161.067 has been amended since defendant’s commission of the
offenses; however, because those amendments do not affect our analysis, we refer
to the current version of the statute in this opinion.
Cite as 303 Or App 78 (2020) 85
separated from each other violation by a “sufficient pause”
in the defendant’s conduct. In the context of ORS 161.067(3),
a “sufficient pause” 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 or her crimi-
nal intent.” State v. Huffman, 234 Or App 177, 184, 227 P3d
1206 (2010). The duration of a pause and what occurred
during that pause are questions of fact, while the question
of whether the pause is “sufficient” to allow for multiple con-
victions is one of law. State v. Reed, 256 Or App 61, 63, 299
P3d 574, rev den, 353 Or 868 (2013).
“In order for a pause to be between violations, ‘one
crime must end before another begins.’ ” Id. at 68 (quoting
State v. Barnum, 333 Or 297, 303, 39 P3d 178 (2002), over-
ruled on other grounds by State v. White, 341 Or 624, 147
P3d 313 (2006) (emphasis in Reed)); see also West-Howell, 282
Or App at 397-98 (“Thus, to support the entry of multiple
convictions for the same offense under ORS 161.067(3), one
crime must end before another begins and each crime must
be separated from the others by a sufficient pause in the
defendant’s criminal conduct to afford him an opportunity
to renounce his criminal intent.” (Emphasis in original.)).
Therefore, merger is appropriate where there is no evidence
that would permit a reasonable factfinder to find that one
crime had ended before the other began. State v. Campbell,
265 Or App 132, 138, 333 P3d 1220 (2014).
Here, there is no dispute that defendant’s conduct
occurred in a single criminal episode and involved repeated
violations of the same two statutory provisions against the
same victim. Therefore, the issue for us to decide is whether
each violation was separated from each other violation of the
same statute by a pause sufficient to have afforded defen-
dant an opportunity to renounce his criminal intent. See
ORS 161.067(3).
We first consider the trial court’s explicit determi-
nation that the second rape, which occurred after defendant
had pulled K into the back seat of the car (and which, for
unknown reasons, the court identified as Count 3 rather
than Count 2) was a separate act—that is, an act separated
86 State v. Ortiz-Rico
by a sufficient pause—from the initial rape that took place
in the front seat of the car. Defendant acknowledges that
those rapes were separated by K attempting to escape,
defendant pulling K back into the car, defendant making
room in the back seat by moving items to the floorboard and
the front seat, and defendant dragging K into the back seat.
Defendant argues, however, that, under State v. Glazier,
253 Or App 109, 288 P3d 1007 (2012), rev den, 353 Or 280(2013), and Campbell, 265 Or App 132, that evidence does
not support the finding that those two violations of the first-
degree rape statute (and the first-degree sexual-abuse stat-
ute) were separated by a sufficient pause. That is because,
defendant contends, the state failed to establish that a sig-
nificant intervening event or pause in defendant’s aggres-
sion occurred. See State v. Nelson, 282 Or App 427, 447,
386 P3d 73 (2016) (concluding that merger of three counts
of sexual abuse was required when “the entire violent epi-
sode at issue occurred in the confined space of the bathroom,
without interruption by any significant event, and without
pause in defendant’s aggression” (internal quotation marks
omitted)). We disagree that merger was required as to those
counts.
In Glazier, the defendant was convicted of one count
of second-degree assault and two counts of fourth-degree
assault after pulling the victim off of a bed by her ankle,
causing her to hit her head and hip on the hardwood floor.
253 Or App at 111. The defendant then dragged the victim
into the hallway, hitting her left hip on the doorjamb and
her right hip on the wall. Id. The defendant continued to
drag the victim into another area, banged her head on the
floor four or five times, and kicked her in the torso. Id. We
concluded that there was no evidence of a temporal break in
the defendant’s assaultive conduct from which a trier of fact
could find that one assault had ended before another began.
Id. at 118. We therefore concluded that the two fourth-
degree assault charges merged into the second-degree
assault charge because the “[d]efendant’s conduct was con-
tinuous and uninterrupted; there was no evidence that he
paused his aggression from the time he pulled the victim off
the bed to the final charged act of kicking her in the torso.”
Id.Cite as 303 Or App 78 (2020) 87
We reached a similar conclusion in Campbell, where
the defendant was convicted of two counts of second-degree
assault after engaging in a violent episode in which he shot
the victim multiple times with a BB gun. 265 Or App at
134. The victim and the defendant were seated in the vic-
tim’s parked truck when the defendant began shooting the
victim while shouting insults at her. Id. at 135. During the
attack, the victim attempted to escape from the truck, but
the defendant pulled her back in by her hair, slammed the
door shut, and continued firing at her. Id. We concluded that
the record did “not contain sufficient evidence for a reason-
able factfinder to determine that one assault [had] ended
before another had begun.” Id. at 138. Because the “entirety
of [the] defendant’s conduct occurred in the cab of the vic-
tim’s truck, without a pause in [the] defendant’s aggression,”
merger of the assault charges was required. Id. at 139.
The state responds that the circumstances in this
case differ significantly from those in Glazier and Campbell
because the record contains evidence from which a reason-
able factfinder could determine that there was a sufficient
pause between the first and second rapes (and, therefore, the
first and second instances of sexual abuse). First, the state
points out that rape occurs upon penetration10 and argues
that the testimony shows that any penetration associated
with the first rape had ceased before defendant commenced
penetrating K in the back seat. The state additionally con-
tends that this case more closely resembles the record in
West-Howell, in which we concluded that merger was not
required for two counts first-degree sodomy. 282 Or App at
395.
In West-Howell, the defendant held the victim to the
ground and demanded oral sex. 282 Or App at 395-96. Once
the victim performed oral sex, the defendant moved the vic-
tim onto a bed and strangled her until she lost conscious-
ness. Id. at 396. When the victim regained consciousness,
the defendant unsuccessfully tried to rape her before forcing
her to perform oral sex a second time. Id. The defendant
argued that merger was required because, “like Campbell
10
See ORS 163.305(7) (“ ‘Sexual intercourse’ has its ordinary meaning and
occurs upon any penetration, however slight; emission is not required.”).
88 State v. Ortiz-Rico
* * * the record reflects a continuous and uninterrupted
course of assaultive conduct.” Id. at 400. We rejected that
argument, explaining that
“[t]he issue is not, as [the] defendant argues, whether
there existed a pause sufficient to renounce any criminal
intent. Rather, the operative question is whether the pause
between the two acts of sodomy was sufficient to allow
[the] defendant to renounce his intent to commit sodomy,
thereby precluding merger of his convictions for that crime.
That [the] defendant continued to engage in other crimi-
nal acts of a qualitatively different nature did not render
his conduct ‘continuous and uninterrupted’ so as to require
merger of the sodomy convictions.”
Id. at 400-01 (emphasis in original). Because the defen-
dant could have ceased his conduct and “gotten a grip,” but
instead formed the intent to sodomize the victim a second
time, there was a sufficient pause between the two acts of
sodomy; in other words, “something of significance” had
occurred between each sodomy. Id.
We agree with the state that there was sufficient
evidence in this case to support the trial court’s determi-
nation that the first and second rapes were separated by a
sufficient pause that afforded defendant the opportunity to
renounce his criminal intent. That is, the record contained
evidence sufficient to allow a reasonable factfinder to find
that defendant’s initial criminal conduct had ended before
he engaged in further criminal conduct in the back seat of
the car. For one thing, unlike in Glazier, where there was no
evidence of a pause in the defendant’s assault on the victim,
here there was a temporal break between the rapes. K tes-
tified that defendant stopped raping her in the front seat at
least long enough to move items from the back seat of the
car to the rear floorboard. She also testified that defendant
then climbed into the back seat and moved other items from
there to the front seat before turning his attention back to
her.
For another thing, although, like in Campbell, the
entire incident occurred in a car, and K’s attempt to escape
was prevented by defendant, the evidence supporting the
court’s finding of a sufficient pause was not limited to K’s
unsuccessful attempt to escape. In addition to preventing
Cite as 303 Or App 78 (2020) 89
K from escaping, defendant cleared the back seat, dragged
K from the front seat to the back, and evidently ignored her
pleas not to be raped again. That is, before defendant began
raping K a second time, she had told him that she could not
continue. K testified that she told defendant that “it hurt
and that he wasn’t going to be able to do what he was trying
to do because it was like [her] body wasn’t—like [she] was
too swollen[.]” But, as K also testified, “he tried anyways.”
Thus, unlike the cases defendant relies on, in this case,
there was considerable evidence both of temporal breaks
and of defendant’s engagement in qualitatively different
conduct between the first and second rapes. When viewed in
the light most favorable to the state, we conclude those facts
are sufficient to support the trial court’s determination that
a sufficient pause separated the two acts of rape.
We turn to the remaining rape and sexual-abuse
convictions to which defendant assigns error. Unlike the
trial court’s ruling on Count 3—which, as we noted,
included an implicit ruling on the corresponding sexual-
abuse count—the trial court did not make findings of fact
regarding merger of the remaining counts. Rather, the court
expressly declined to make a finding that the counts were
“separate acts.” Where the trial court makes no express
findings, we “presume that the facts were decided in a man-
ner consistent with the trial court’s ultimate conclusion.”
State v. McConville, 243 Or App 275, 277, 259 P3d 947 (2011)
(internal quotation marks omitted). Where, however, as
here, the trial court has expressly declined to make such
findings, we will not make such presumptions. Therefore,
we must vacate the convictions on Counts 2, 4, 6, and 8 and
remand to the trial court to make additional findings as to
whether there were sufficient pauses separating the conduct
underlying those counts to justify separate convictions on
each of them. See State v. Stanton, 266 Or App 374, 380, 337
P3d 955 (2014) (“The trial court was required to determine
whether [the] defendant’s guilty verdicts should merge or
whether an exception to merger applied.”).
Convictions on Counts 2, 4, 6, and 8 vacated and
remanded; remanded for resentencing; otherwise affirmed.