State v. N. R.-V. ( 2022 )

646
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted June 2; jurisdictional judgment reversed and remanded for entry of a
judgment reflecting adjudication for a single count of unlawful dissemination of
an intimate image, otherwise affirmed June 29, 2022
In the Matter of N. R.-V.,
a Youth.
STATE OF OREGON,
Respondent,
v.
N. R.-V.,
Appellant.
Washington County Circuit Court
19JU09522;
A175274 (Control), A175275
Brandon M. Thompson, Judge.
Ginger Fitch and Youth, Rights & Justice filed the brief
for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Eric Seepe, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
PER CURIAM
Jurisdictional judgment reversed and remanded for
entry of a judgment reflecting adjudication for a single count
of unlawful dissemination of an intimate image; otherwise
affirmed.
Nonprecedential Memo Op: 320 Or App 646 (2022) 647
PER CURIAM
In this juvenile proceeding, youth appeals from
the jurisdictional judgment determining that he is within
the jurisdiction of the juvenile court based on conduct that,
if committed by an adult, would constitute two counts of
unlawful dissemination of an intimate image, ORS 163.472,
and from the dispositional judgment. Youth was alleged to
have disclosed through an Internet website the intimate
images of another youth to two different people on the same
day. Youth requests that we take de novo review and asserts
three assignments of error.
We decline to take de novo review in this case. See
ORS 19.415(3)(b). Here, the juvenile court made express fac-
tual and credibility findings that are supported by the record
and made a disposition consistent with those findings. Youth
does not argue that the court could not make the findings
that it did based on the record and instead argues for differ-
ent findings. Under the circumstances, this is not an excep-
tional case for which we will exercise our discretion to take
de novo review. ORAP 5.40(8)(c), (d). As a result, “we review
the juvenile court’s legal conclusions for errors of law, but
are bound by the court’s finding of historical fact so long as
there is any evidence to support them.” State v. G. L. D., Jr.,
253 Or App 416, 418, 290 P3d 852 (2012), rev den, 354 Or
597 (2013) (internal quotation marks omitted).
In his first two assignments, youth argues that the
evidence was insufficient for the court to adjudicate youth
delinquent for two counts of unlawful dissemination of an
intimate image. Because we decline to take de novo review,
we review that challenge “to determine whether, viewing the
evidence in the light most favorable to the state, a rational
trier of fact could have found the essential elements of the
alleged act beyond a reasonable doubt.” State v. R. W. G.,
288 Or App 238, 239-40, 404 P3d 1131 (2017) (internal quo-
tation marks and brackets omitted). Under that standard of
review, we conclude that the juvenile court did not err.
In his third assignment of error, youth asserts
that the juvenile court erred in failing to merge the two
counts of unlawful dissemination of an intimate image.
648 State v. N. R.-V.
Youth concedes that he did not preserve his claim of error,
but requests that we correct it as plain error. ORAP 5.45(1)
(setting out requirements for plain error review). The state
concedes that the juvenile court plainly erred in failing to
merge the two counts. Merger under ORS 161.067 applies to
juvenile adjudications. State v. K. R. S., 298 Or App 318, 331,
449 P3d 511 (2019). Here, there was no evidence to support
the existence of a sufficient pause in between youth sending
the intimate images to the two different people such that
the counts would not merge under ORS 161.067(3). We agree
with and accept the state’s concession that the juvenile court
plainly erred in not merging the two counts. We further con-
clude that we should exercise our discretion to correct the
error due to the gravity of the error for youth and because
the burden on the judicial system to correct the error is
minimal.
Jurisdictional judgment reversed and remanded for
entry of a judgment reflecting adjudication for a single count
of unlawful dissemination of an intimate image; otherwise
affirmed.