State v. Moscote-Saavedra ( 2022 )

682
Argued and submitted December 22, 2021; convictions on Counts 3, 4, and 5
reversed and remanded for entry of judgment of conviction for one count of first-
degree sexual abuse, remanded for resentencing, otherwise affirmed
July 13, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
GABRIEL MOSCOTE-SAAVEDRA,
Defendant-Appellant.
Washington County Circuit Court
18CR84521; A173012
514 P3d 1169
Defendant appeals a judgment of conviction, arguing that the trial court
erred in failing to merge the guilty verdicts for three counts of first-degree sex-
ual abuse into a single conviction because there was no evidence of a “sufficient
pause,” ORS 161.067(3), between each act. Held: The trial court erred in entering
three separate sexual abuse convictions. The state failed to present evidence of
either a break between some of the acts underlying the sexual abuse charges, or,
where there was evidence of a break, failed to present evidence from which to
infer the temporal duration of the break or other significant intervening event
such that defendant was afforded the opportunity to renounce his criminal
intent between each act of sexual abuse. Further, defendant’s intervening sexual
conduct did not establish a “sufficient pause” between his acts of sexual abuse
because there was an insufficient level of detail about that intervening conduct
from which to infer that the intervening conduct was temporally or qualitatively
distinct from his acts of sexual abuse.
Convictions on Counts 3, 4, and 5 reversed and remanded for entry of judg-
ment of conviction for one count of first-degree sexual abuse; remanded for resen-
tencing; otherwise affirmed.
Janelle F. Wipper, Judge.
Emily P. Seltzer, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
Jennifer S. Lloyd, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Cite as 320 Or App 682 (2022) 683
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
ORTEGA, P. J.
Convictions on Counts 3, 4, and 5 reversed and remanded
for entry of judgment of conviction for one count of first-
degree sexual abuse; remanded for resentencing; otherwise
affirmed.
684 State v. Moscote-Saavedra
ORTEGA, P. J.
Defendant appeals a judgment of conviction for three
counts of first-degree sexual abuse (Counts 3, 4, and 5), attempt
to commit first-degree rape (Count 6), and first-degree bur-
glary (Count 7). A jury returned unanimous verdicts on those
charges and on two burglary offense subcategory factors.
Defendant raises three assignments of error. In his third
assignment of error, he argues that the trial court erred
in instructing the jury that it could return nonunanimous
guilty verdicts on the charges and offense subcategories,
asserting that the error was structural or alternatively not
harmless. Although the court erred in giving the nonunani-
mous jury instruction, Ramos v. Louisiana, 590 US ___, 140
S Ct 1390, 206 L Ed 2d 583 (2020), the error is not reversible
because it is not structural and, as to unanimous verdicts, is
harmless beyond a reasonable doubt. State v. Flores Ramos,
367 Or 292, 334, 478 P3d 515 (2020); State v. Enloe, 316 Or
App 680, 681-82, 502 P3d 1213 (2021) (Ramos jury una-
nimity requirement applies to jury findings on subcategory
factors); State v. Huynh, 315 Or App 456, 458, 500 P3d 767
(2021) (unanimous jury verdicts on sentence-enhancement
facts is harmless under Flores Ramos).
In combined assignments of error one and two,
defendant argues that the trial court erred in failing to
merge the guilty verdicts on Counts 3, 4, and 5 into a sin-
gle conviction, because the sexual contacts occurred during
the same criminal episode without evidence of a “sufficient
pause” between each act. See ORS 161.067(3) (when the same
conduct or criminal episode violates one statutory provision
against one victim, allowing for as many separably pun-
ishable offenses as there are violations if each violation is
separated from the other by a “sufficient pause”). The state
concedes that the court erred in relying on the consecutive-
sentencing statute, ORS 137.123, and not the merger stat-
ute, ORS 161.067, in deciding the merger issue. However,
in the state’s view, the record does support a determination
that there was a “sufficient pause” between each act of sex-
ual abuse and therefore asks us to allow the court to recon-
sider defendant’s merger argument on remand under the
correct legal standard. Although we agree with the state
Cite as 320 Or App 682 (2022) 685
that the court erred in relying on the wrong legal standard,
we agree with defendant that, even under the correct one,
the record does not contain the requisite evidence to support
a “sufficient pause” between each instance of sexual abuse.
We therefore reverse and remand the convictions on Counts
3, 4, and 5 for entry of a single conviction and otherwise
affirm.
We begin with the undisputed background facts,
providing more detailed facts in our analysis. One night
when R was asleep in her bed, she was awakened by a man,
later identified as defendant, climbing into her bed. While
armed with a knife1 and holding his hand over her mouth
and nose, he committed various acts of sexual assault set
forth later in greater detail. The ordeal lasted approxi-
mately 30 minutes and ended after defendant ejaculated
and ran out of R’s apartment.
For that conduct, defendant was charged with
numerous crimes, including first-degree sodomy (anal sex-
ual intercourse), ORS 163.405 (Count 1); first-degree sex-
ual penetration by force (penetrating the vagina with his
fingers), ORS 163.411 (Count 2); attempted first-degree
rape by force (vaginal intercourse), ORS 163.375 (Count 6);
first-degree burglary, ORS 164.225 (Count 7); second-
degree assault, ORS 163.175 (Count 8); and unlawful use
of a weapon, ORS 166.220 (Count 9). Defendant was also
charged with three counts of first-degree sexual abuse by
force, ORS 163.427,2 based on the touching of different body
1
Defendant was acquitted of unlawful use of a weapon based on his use of
a “knife” and the offense subcategory factor of his use or threatened use of a
weapon related to other charges. However, the parties do not dispute for purposes
of appeal that defendant was holding a knife during the sexual assault.
2
Although ORS 163.427 was amended following the pertinent events of this
case, we refer to the current version throughout the opinion because the amend-
ment does not affect our analysis. See ORS 163.427(1)(a)(B) (2019), amended by
Or Laws 2021, ch 82, § 7. As pertinent here, first-degree sexual abuse includes
subjecting another person to sexual contact by forcible compulsion. ORS
163.427(1)(a)(B). “Sexual contact” is defined as “any touching of the sexual or
other intimate parts of a person or causing such person to touch the sexual or
other intimate parts of the actor for the purpose of arousing or gratifying the sex-
ual desire of either party.” ORS 163.305(5). Although ORS 163.305 was amended
following the pertinent events of this case, we refer to the current version because
the quoted language remains the same. ORS 163.305 (2019), amended by Or
Laws 2021, ch 82, § 1.
686 State v. Moscote-Saavedra
parts: defendant touching R’s breast (Count 3); defendant
touching R’s buttocks (Count 4); and defendant forcing R
to touch his penis (Count 5). A jury convicted defendant of
the three counts of first-degree sexual abuse, attempted
rape, and first-degree burglary. The court granted the
state’s motion to dismiss the second-degree assault charge
(Count 8) and defendant was acquitted on Counts 1, 2,
and 9.
Related to sentencing, defendant argued that the
verdicts on all three sexual abuse counts should merge for
entry of a single conviction, because they occurred during
the same criminal episode, involved violations of the same
statutory provision against the same victim, and there was
no evidence of a sufficient pause between each act. The
state disagreed. Relying on the consecutive-sentencing stat-
ute, ORS 137.123, it argued that the court was permitted
to enter separate convictions based on each act. The trial
court denied defendant’s motion, entered separate convic-
tions for each count of sexual abuse, and ordered the prison
terms on Counts 4 and 5 to run consecutively to the prison
term on Count 3. However, the court ordered the prison
term on the attempted-rape count to run concurrently to
all other counts, finding that it “does merge for sentencing
purposes.”3
On appeal, defendant renews his merger argument
made below. The parties agree that defendant’s conduct was
part of one criminal episode and involved repeated viola-
tions of the same statutory provision against the same vic-
tim. The parties also agree that the court erred but disagree
as to its precise error. Defendant contends that the court
erred in failing to merge the guilty verdicts on the sexual
abuse counts without evidence of a “sufficient pause.” The
state, however, asserts that the court’s error was in basing
its merger ruling on the standard applicable to consecutive
sentencing, ORS 137.123, and not merger, ORS 161.067(3).
According to the state, the appropriate remedy is to allow
the court to reconsider the merger issue on remand under
the correct legal framework, because it views the record as
3
The court ordered the prison term for the first-degree burglary conviction
(Count 7) to run consecutively to all other counts.
Cite as 320 Or App 682 (2022) 687
establishing a “sufficient pause.” The state concedes, how-
ever, that a remand is not required if we determine that the
record does not, as a matter of law, allow for entry of a sep-
arate conviction for each act of sexual abuse, even applying
the correct legal framework.
We begin with whether the court applied ORS
161.067, applicable to merger, or ORS 137.123, applicable to
consecutive sentencing, when it decided the merger issue.
ORS 161.067, Oregon’s “antimerger” statute, governs the
merger of guilty verdicts. As relevant, ORS 161.067(3) pro-
vides that when
“the same conduct or criminal episode violates only one
statutory provision and involves only one victim, but never-
theless involves repeated violations of the same statutory
provision against the same victim, there are as many sep-
arately punishable offenses as there are violations, except
that each violation, to be separately punishable 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 crim-
inal intent.”
ORS 161.067(3).
As relevant, ORS 137.123(5)(a) permits a court to
impose consecutive terms of imprisonment for “separate
convictions arising out of a continuous and uninterrupted
course of conduct” if it finds
“[t]hat the criminal offense for which a consecutive sen-
tence is contemplated was not merely an incidental viola-
tion of a separate statutory provision in the course of the
commission of a more serious crime but rather was an indi-
cation of defendant’s willingness to commit more than one
criminal offense[.]”
Defendant argued in a written sentencing memo-
randum that the three guilty verdicts for sexual abuse must
merge into a single conviction under ORS 161.067(3), because
defendant’s conduct occurred during the same criminal epi-
sode without evidence of a temporal break or other signif-
icant intervening event to support a determination that a
“sufficient pause” occurred between each act of sexual abuse.
688 State v. Moscote-Saavedra
For support, defendant cited State v. Nelson, 282 Or App
427, 429, 431, 386 P3d 73 (2016) (concluding that multiple
guilty verdicts for sexual abuse based on touching of differ-
ent body parts merge into a single conviction for first-degree
sexual abuse because there was no evidence of a sufficient
pause, ORS 161.067(3), between each act of abuse), and State
v. Dugan, 282 Or App 768, 773, 387 P3d 439 (2016) (same).4
At the outset of the sentencing hearing, the trial
court acknowledged having read defendant’s sentencing
memorandum and recognized that his arguments and cases
cited in support “goes to whether or not the court determines
that there was a sufficient pause.” Although defendant did
not refer to the statute in his written merger argument, the
state’s position was that defendant’s written merger analysis
was legally incorrect under ORS 137.123. In rejecting defen-
dant’s merger argument, the court ruled that, given the
facts of the case, the crimes were “separate acts” and “not
the same criminal episode” under ORS 137.123.
On appeal, defendant argues that, although the
court incorrectly denied his merger motion, it relied on the
correct statute when ruling. He points to the court’s oral
finding that defendant’s conduct constituted “separate acts,”
which, defendant contends, is grounded in the text of the
statute applicable to merger. See ORS 161.067(3) (there are
“as many separately punishable offenses as there are vio-
lations, except that each violation * * * must be separated
from other such violations by a sufficient pause” (empha-
ses added)). Defendant also points to the court’s use of the
phrase “same criminal episode” as support for its position,
noting that that phrase appears in the merger statute but
not the consecutive-sentencing statute.
According to the state, the court’s finding that
all of the offenses were “separate acts” and “not the same
4
Defendant also cited State v. Perez-Cardenas, 296 Or App 881, 440 P3d
121 (2019), rev’d on recons on other grounds, 305 Or App 309, 471 P3d 158 (2020).
However, after defendant’s sentencing hearing, we reversed the defendant’s con-
viction in that case on reconsideration under Ramos, remanded the case for a
new trial, and withdrew our prior opinion in which we accepted a state conces-
sion that the court had plainly erred in failing to merge the guilty verdicts for
multiple counts of sexual abuse without evidence of a sufficient pause. See id. at
883-84.
Cite as 320 Or App 682 (2022) 689
criminal episode” establishes that it applied the wrong stat-
ute, because, in its view, those findings would support impo-
sition of consecutive sentences under ORS 137.123, but not
merger under ORS 161.067(3). The state notes that the court
could not have found that the offenses occurred in “separate
criminal episodes” under the correct legal interpretation of
that term and that it appeared to be “using that language
as shorthand for the standard argued by the prosecutor”
under ORS 137.123(5)(a). We agree with the state.
The court’s ruling tracked the state’s framing
of the merger inquiry, which was incorrectly grounded in
the consecutive-sentencing statute. The state argued that
what mattered for purposes of merger was whether the evi-
dence showed that one crime was “incidental” to the other
or whether it established a “willingness on the part of the
defendant to engage in additional different criminal behav-
ior.” (Emphasis added.) It further contended that one of
the criteria for merger was whether each act of touching
“cause[d] a separate harm to the victim.” (Emphasis added.)
Applying that legal framework, the state asserted that the
counts did not merge because defendant could commit each
act of sexual abuse independent from the other and did so
with the purpose of “becoming sexually aroused and sex-
ually gratified and using the victim for separate—sexual
gratification in three separate ways.” (Emphases added.)
Those arguments are grounded in the text and legal stan-
dard of the consecutive-sentencing statute, which the state
explicitly referenced multiple times throughout the hearing
as support for its merger arguments. See ORS 137.123(5)(a)
(allowing for consecutive sentences if court finds the crimi-
nal offense “was not merely an incidental violation of a sep-
arate statutory provision in the course of the commission of
a more serious crime but rather was an indication of defen-
dant’s willingness to commit more than one criminal offense”
(emphases added)). In its oral ruling, the court found that
defendant’s conduct underlying the charges constituted “sep-
arate acts,” also citing the consecutive-sentencing statute.
Moreover, it stated that “more than just a concurrent sen-
tence” was called for. Those findings and conclusions mirror
the state’s language and framing of the legal inquiry based
on the consecutive-sentencing statute and reflect that, in
690 State v. Moscote-Saavedra
rejecting defendant’s merger argument, the court relied on
the wrong legal standard.5
We do not agree with defendant that the court’s use
of “criminal episode” in its oral ruling supports that it was
relying on the merger statute. Although defendant is correct
that the phrase “criminal episode” is contained in the text of
the merger statute but not the consecutive-sentencing stat-
ute, the court’s use of that phrase does not establish that it
was relying on the merger statute, when viewed in light of
(1) its explicit reference to ORS 137.123; (2) its statement
indicating that “concurrent” sentences would not be appro-
priate; and (3) the case law using “criminal episode” language
as essentially equivalent to the language in ORS 137.123
concerning “a continuous and uninterrupted course of con-
duct.” See, e.g., State v. Wolfgang, 278 Or App 781, 792, 379
P3d 759, rev den, 360 Or 465 (2016) (“ ‘criminal episode’ has
at times been used interchangeably with ORS 137.123(2)’s
reference to ‘same continuous and uninterrupted course of
conduct,’ ” citing cases).
The court erred by relying on the consecutive-
sentencing statute in determining merger. A court must
first determine whether verdicts merge because, if they do,
the result is a single conviction, which would make it unnec-
essary to determine whether the court could impose any
prison terms on multiple convictions concurrently or consec-
utively. See State v. Sanchez-Chavez, 312 Or App 701, 712,
495 P3d 197, rev den, 369 Or 110 (2021) (“consecutive sen-
tencing would not even be at issue” where “convictions must
merge, yielding a single sentence”). The court’s reliance on
5
The court’s determination that it was required to impose the prison term
on the attempted-rape count concurrently to the prison terms on the other counts
based on its finding that the attempted rape “does merge for sentencing pur-
poses” also supports our conclusion. The phrase “merge for sentencing” conflates
merger, which occurs upon entry of conviction, with consecutive sentencing,
which occurs upon imposition of sentence. See State v. Mason, 241 Or App 714,
718 n 4, 250 P3d 976 (2011) (“[T]he phrase ‘merged for sentencing purposes’ is
a misnomer and should never be used because it improperly conflates two dis-
tinct parts of the criminal process: the entry of convictions and the imposition of
sentences. The concept of merger relates to the former and is controlled by ORS
161.067. The imposition of consecutive or concurrent sentences relates to the lat-
ter and is controlled by ORS 137.123. The two statutes operate independently. See
State v. White, 346 Or 275, 279 n 4, 211 P3d 248 (2009); State v. Merrick, 224 Or
App 471, 472, 197 P3d 624 (2008).”).
Cite as 320 Or App 682 (2022) 691
the consecutive-sentencing statute instead of the merger
statute in making its merger ruling was therefore error.
See State v. Ortiz-Rico, 303 Or App 78, 82 n 5, 462 P3d 741,
rev den, 366 Or 827 (2020) (“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 determina-
tion under ORS 161.067.”).
We turn to whether the record supports a “sufficient
pause” between each act of sexual abuse within the mean-
ing of ORS 161.067(3), reviewing for legal error. See State v.
Campbell, 265 Or App 132, 134, 333 P3d 1220 (2014) (merger
ruling reviewed for legal error).
The phrase “sufficient pause” under ORS 161.067(3)
“means a temporary or brief cessation of a defendant’s crim-
inal 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 criminal intent.” State
v. West-Howell, 282 Or App 393, 397, 385 P3d 1121 (2016),
rev den, 361 Or 312 (2017) (internal quotation marks omit-
ted). In order “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 sepa-
rated from the others by a sufficient pause in the defendant’s
criminal conduct to afford him an opportunity to renounce
his criminal intent.” Id. at 397-98 (emphasis in original).
“In determining whether a sufficient pause occurred, a
court must consider the evidence regarding the duration of
any pause, what happened during the pause, and whether
the defendant’s criminal conduct was qualitatively differ-
ent before and after the pause.” State v. Lasheski, 309 Or
App 140, 146, 481 P3d 966 (2021) (internal quotation marks
omitted). The presumption is that statutory violations based
on the same conduct or criminal episode merge unless the
circumstances outlined in ORS 161.067 are present. State v.
Gensitskiy, 365 Or 263, 281 n 5, 446 P3d 26 (2019). It is the
state’s burden to prove the existence of a sufficient pause.
State v. Barton, 304 Or App 481, 499, 468 P3d 510 (2020).
R described the sexual assault at trial. She testified
that defendant crawled into her bed, pulled down her pants,
and then he “reached around to the front of me and put his
692 State v. Moscote-Saavedra
hand inside of [my vagina].” R continued, “Then I heard
his pants being adjusted and * * * he grabbed my hand and
he put it on his penis, and I snatched my hand away and
was yelling ‘no,’ ” and then he began “rubbing his penis * * *
against my butt and trying to enter me and * * * that didn’t
work.” The district attorney sought R’s clarification of what
she meant by it “didn’t work,” asking, “specifically [what]
was he trying to do and why was he unsuccessful in doing
it?” R answered:
“[R:] He * * * lost his erection.
“[District Attorney:] Okay.
“[R:] And that’s when he had then like bent down and
* * * licked my back side—
“* * * * *
“[District Attorney:] [R,] backing up a little bit. I want
you to be specific * * * it’s okay. Did he try to have sex with
you?
“[R:] Yes.
“[District Attorney:] Was he successful in doing that?
“[R:] No.
“[District Attorney:] And why was he unsuccessful
with doing that?
“[R:] Because he * * * couldn’t keep the erection.
“[District Attorney:] What happened next?
“[R:] Then * * * he was still trying to * * * regain the
erection and he * * * grabbed my breasts * * * and at the
same time I was trying to like keep his hands off my mouth,
so that I could breathe, and screaming and—while he was
telling me, ‘Be quiet. Just shh, shh, shh.’ ”
The prosecutor returned to asking R about what
occurred when defendant attempted to penetrate her vagina:
“[District Attorney:] When [defendant] * * * attempted
to have sex with you, but was unsuccessful because he
couldn’t maintain his erection, was his penis against your
bare vaginal area?
Cite as 320 Or App 682 (2022) 693
“[R:] Not the vaginal area. It was—because he was
behind me and I have a larger booty, but it—he was trying
to.
“[District Attorney:] So there was an effort made from
behind, but he couldn’t quite reach because he didn’t have
an erection and because of the positioning and size of your
body?
“[R:] Yeah.
“[District Attorney:] Okay. Did you believe that was
the attempt, that was the purpose was to try to have sex
with you—
“[R:] Oh, yes.”
The district attorney reminded R that they had
left off with defendant, just before grabbing her breasts,
trying to regain his erection, and then asked, “What hap-
pened next?” R testified, “After he had licked me, then the
erection came back,” and he positioned his penis against
her buttocks, causing both his hand and penis to touch her
anus. He then proceeded to rub his penis against her anus
“[t]rying to get entry” until he ejaculated and left.6 During
the assault, R was on her side while defendant “spoon[ed]”
her from behind, holding a knife to her side and his hand
over her mouth and nose. R made various attempts through-
out the episode to resist the attack, including several times
yelling “no” and trying to remove defendant’s hand from
her mouth. At the point defendant ejaculated, R was “[s]till
struggling” and “his hand was still over [her] mouth” and
the “knife was on [her] side.”
On appeal, defendant argues that the trial court
erred in failing to merge the three guilty verdicts for sexual
abuse into a single conviction without evidence of a “suffi-
cient pause.” According to defendant, each act involved the
sequential or overlapping touching of different body parts
without evidence of a temporal break or significant event
between each act. Relying on State v. Bradley, 307 Or App
6On cross-examination, R backtracked in part, stating that she was not
positive that defendant’s penis touched her anus but confirmed it touched her
buttocks. For that act of touching, defendant was charged with but acquitted of
first-degree sodomy based on the allegation that he “knowingly, by forcible com-
pulsion, engag[ed] in anal sexual intercourse.”
694 State v. Moscote-Saavedra
374, 477 P3d 409 (2020), adh’d to as modified on recons, 309
Or App 598, 483 P3d 717 (2021), defendant asserts that any
additional intervening sexual conduct between the inci-
dents of sexual abuse was not enough to establish a “suf-
ficient pause.” Defendant compares this case to Bradley,
asserting that defendant’s conduct amounted to a series of
continuous sexual offenses and acts without any break in
between, and that each act was directed toward defendant’s
intent to engage in sexual conduct with R. Thus, according
to defendant, “Bradley holds that additional sexual contact
that is intertwined with and directed at the overall goal of
sexual abuse does not create a sufficient pause that permits
the defendant to renounce his criminal intent.”
The state disagrees. With regard to the first two
acts of sexual touching underlying the sexual abuse charges,
the state contends that, unlike Bradley, the evidence estab-
lishes a temporal break in that the first act—defendant
causing R to touch his penis—terminated when R pulled her
hand away. Further, according to the state, evidence that
defendant had to change positions to begin the second act—
bending down to lick R’s buttocks—allows for the inference
of a more meaningful temporal break beyond simple acts
of sequential touching. The state also contends that defen-
dant’s conduct underlying the second act of sexual abuse—
touching R’s buttocks with his tongue—was qualitatively
different conduct creating a “sufficient pause,” because it
was done for the different purpose to restore his erection.
With regard to the second and third acts, the state
concedes that the record allows for less of an inference of a
temporal break because it is possible that those acts were
happening simultaneously. However, it contends that defen-
dant’s act of licking R’s buttocks was qualitatively different
conduct than his next act of touching her breast because it
was done for a different purpose—to restore his erection. We
disagree with the state.
As a preliminary matter, it is unclear from the
record which of defendant’s acts supported the jury’s con-
viction for sexual abuse based on defendant’s touching of
R’s buttocks (Count 4). In all, there were four incidents of
defendant’s touching of R’s buttocks: defendant’s initial act
Cite as 320 Or App 682 (2022) 695
of rubbing his penis against her buttocks at the time of the
attempted rape, his act of touching with his tongue that fol-
lowed, and his final two simultaneous acts of touching of R’s
anus with his penis and hand.7 The state did not specify,
either in the indictment or at trial, which of defendant’s acts
of touching R’s buttocks supported the related sexual abuse
charge, and the record does not indicate which of those acts
supported the jury’s verdict. On appeal, defendant addresses
only two of the acts: defendant’s initial act of rubbing his
penis against R’s buttocks accompanying the attempted
rape and his touching with his tongue. The state addresses
only one: defendant’s touching of R’s buttocks with his
tongue.8 Because our task is to review the sufficiency of the
evidence to support the court’s merger ruling, and we have
no way to determine which of those acts the jury relied on
to support its verdict, we consider all of defendant’s acts of
touching of R’s buttocks in our merger analysis, addressing
each of those acts in sequential order. Further, we combine
our discussion of the pause between defendant’s first two acts
of touching of R’s buttocks—with his penis and tongue—
and his other acts—causing R to touch his penis and touch-
ing her breasts. We end by discussing the pause between
his final two acts of touching of R’s buttocks—touching her
anus with his penis and hand—and his other acts—causing
R to touch his penis and touching her breasts.
We begin with the break between defendant caus-
ing R to touch his penis, the first act of sexual abuse, and
the initial instance of defendant’s rubbing his penis against
R’s buttocks that followed. Although there was evidence of a
temporal break between those acts, the state failed to pres-
ent evidence of the duration of that break, or of any other
significant intervening event, which created a sufficient
pause allowing defendant the opportunity to renounce his
criminal intent. R testified that she “snatched [her] hand
7
As previously noted, the state relied on R’s testimony that defendant rubbed
his penis against her anus to support the first-degree sodomy charge.
8
As reflected in its brief, the state understood defendant’s attempt to pene-
trate R’s vagina, which included defendant’s first act of rubbing his penis against
her buttocks, to have occurred at the outset of the attack, before defendant’s com-
mission of any of the acts of sexual abuse. However, the state’s understanding of
the sequence of events is inconsistent with R’s trial testimony and defendant’s
recitation of the record on appeal.
696 State v. Moscote-Saavedra
away” from defendant’s penis and he then began touching
her buttocks. In removing her hand, R effectively termi-
nated the first act of sexual abuse, establishing a temporal
break between the first and second acts of touching, regard-
less of which of defendant’s acts of touching of her buttocks
supported that related sexual abuse charge. However, R’s
testimony described defendant as beginning the second act,
rubbing his penis against her buttocks, immediately after
she terminated the first act and without any other change
in circumstance, which establishes only sequential acts of
touching. Without more, that evidence does not support a
“sufficient pause” between those acts. See Nelson, 282 Or
App at 447 (concluding that the court erred in entering
multiple convictions for each act of sexual abuse “where the
record demonstrates only that defendant’s acts occurred
in sequence over a brief period of time * * * in the confined
space of the bathroom, without interruption by any signifi-
cant event, and without a pause in the defendant’s aggres-
sion” (internal quotation marks omitted)). We disagree with
the state that R’s verbal and physical attempts to resist
the attack throughout the assault, including her pleas for
defendant to stop and attempts to remove his hand from her
mouth, created a “sufficient pause.” See Lasheski, 309 Or
App at 149 (a victim’s attempts to escape a sexual assault
by “slight[ ]” movements or other actions that “expressly or
implicitly communicate a desire for the defendant to stop
an attack and the defendant nonetheless continues” are not
events, without more, that create a sufficient pause between
acts of sexual abuse for purposes of merger).
The record is similarly deficient if the second act
was defendant’s licking R’s buttocks. R testified that after
she terminated the first act of sexual abuse, defendant
started “rubbing his penis * * * against my butt and try-
ing to enter me” but lost his erection, “[a]nd that’s when he
had then like bent down and * * * licked my back side.” R
also explained that, although his penis never touched her
vagina, she understood defendant to be attempting to pen-
etrate her vagina with his penis, and that those attempts
occurred while they remained in the same position—R lay-
ing on her side with defendant behind her. Although that
testimony allows for the inference of a greater temporal
Cite as 320 Or App 682 (2022) 697
break than sequential acts of touching because it described
defendant as engaging in intervening sexual acts, it none-
theless lacks the necessary detail about the timing or nature
of the intervening conduct. It does not describe, for example,
how long defendant engaged in that conduct or what pre-
cisely defendant did, other than rub his penis against her
buttocks, when he attempted to penetrate her vagina. On
this record, it would require speculation to infer that defen-
dant’s attempted-rape conduct was something other than, or
differed markedly from, his act of rubbing his penis against
R’s buttocks, acts which could have occurred over a matter
of seconds or minutes. See Lasheski, 309 Or App at 148 (con-
cluding that the victim’s testimony that defendant woke her
from sleep several times by “touching her” and, when she
finally was fully awake, he was “still” touching her; that he
touched her vagina; and that, after she rolled over, he put
his hands underneath her pants and touched her “backside,”
did “not support any finding about the temporal relation-
ship between [the touching of the vagina] and the other sex-
ual abuse to which defendant subjected her” and therefore
failed to establish a sufficient pause between sequential acts
of touching).
Contrary to the state’s suggestion, we do not agree
that a factfinder could infer anything about the temporal
duration of the break based on defendant’s simple act of
bending down to initiate the second act of sexual abuse.
Cf. State v. Zachery, 304 Or App 476, 479, 467 P3d 827 (2020)
(“Standing alone, a change in the means of communication
during a criminal episode of this nature—from text mes-
sages to voicemails left on a cell phone and home phone—
does not demonstrate a ‘sufficient pause’ between the acts
* * *.”); State v. Sanders, 185 Or App 125, 128-30, 57 P3d 963
(2002), adh’d to as modified on recons, 189 Or App 107, 74
P3d 1105 (2003), rev den, 336 Or 657 (2004) (rejecting the
state’s argument that any measurable duration of a pause
could be inferred from the fact that “the victim had enough
time to hold up her arm to ward off the blow”).
For the same reason, defendant’s intervening
conduct—rubbing his penis against her buttocks and attempt-
ing to penetrate her vagina—was not qualitatively different
in nature from his acts of sexual abuse such that it created
698 State v. Moscote-Saavedra
a “sufficient pause.” West-Howell addressed the sufficiency of
a pause between sexual crimes where the defendant engages
in other intervening criminal conduct. 282 Or App at 399.
In that case, the defendant sodomized the victim twice and,
in between, strangled and attempted to rape her. The first
sodomy occurred on the floor over a 10-minute period. The
defendant then moved the victim to the bed and strangled her
until she lost consciousness and attempted to rape her after
she awoke. After that, he moved the victim back onto the floor
and sodomized her again. We concluded that that evidence
supported a “sufficient pause” between the two acts of sod-
omy in part because of evidence that they “were separated by
assaultive conduct of a different nature.” Id. at 400-01.
Here, the intervening conduct and events are dis-
tinct from West-Howell. That case “involved two counts of
sodomy separated by a series of other acts and movements,
including the defendant moving the victim to a bed, stran-
gling her to the point of unconsciousness, attempting to rape
her on the bed after she regained consciousness, and then
moving her back to the floor to perform oral sex.” State v.
Moore, 319 Or App 136, 148, 510 P3d 907 (2022). In con-
trast, this case involves a series of sexual assaults without
evidence of a durational break between each act, and the
entire assault occurred while R was lying on her side and
defendant was behind her, holding his hand over her mouth
and nose and a knife at her side. Further, in West-Howell,
the intervening conduct was “qualitatively different” from
the incidents of sodomy because it was “assaultive conduct of
a different nature.” 282 Or App at 400. Here, the interven-
ing conduct between the acts of sexual abuse was defendant
rubbing his penis against R’s buttocks and his accompany-
ing attempt to penetrate her vagina. Without some evidence
of the duration of the break or additional details about the
intervening conduct, the evidence fails to establish a “suf-
ficient pause” based on that intervening conduct that was
“so marked in scope or quality that it afford[ed] * * * defen-
dant the opportunity to renounce his * * * criminal intent”
to commit his acts of sexual abuse. State v. Huffman, 234 Or
App 177, 184, 227 P3d 1206 (2010).
Nevertheless, we do not agree with defendant that
Bradley is sufficiently similar. 307 Or App 374. There, the
Cite as 320 Or App 682 (2022) 699
defendant was convicted of two counts of first-degree sexual
abuse, and, in between those acts, he committed a sodomy.
The entire episode was “very short” and took place while the
victim and defendant were seated on the floor of a garage.
The defendant showed the child-victim how to hold his penis,
told her to touch it, told her to put her mouth on it, and then
touched her vagina with his hand. Id. at 376-77.
We concluded that the record did not establish a
“sufficient pause.” We explained that, on that record, “no
reasonable factfinder could conclude that there was any tem-
poral break or pause in defendant’s aggression between the
two acts of sexual abuse such that one crime ended before
another began.” Id. at 381. Rather, “the evidence showed
that the first act of sexual contact that initiated the abuse—
defendant causing the victim to touch his penis—assisted
defendant in the commission of the sodomy,” and was there-
fore “sufficiently intertwined with defendant’s commission
of the sodomy such that, once defendant initiated the sod-
omy, the sexual abuse was still ongoing.” Id. at 383. As to
the relationship between the intervening sodomy and the
second act of sexual abuse, we held that “a trier of fact could
only speculate that [the first act of sexual abuse and sod-
omy] had ceased * * * at the time defendant initiated the
final act of sexual contact.” Id. at 383-84. We emphasized:
“We do not hold that simply because the intervening
conduct in this case falls within the same broad category
of the crimes sought to be merged (e.g., ‘sexual conduct’),
those crimes must merge under ORS 161.067(3). Rather, we
conclude that when, as here, the intervening conduct was
intertwined with the conduct underlying the crimes sought
to be merged and assisted defendant in achieving his over-
all criminal objective of sexually abusing the victim, that
the intervening conduct was of a similar nature is rele-
vant to the sufficiency of the pause issue and, thus—with
no other evidence that one crime ended before the other
began—merger is precluded.”
Id. at 386.
We reject any suggestion that Bradley announced a
broad legal principle that any time a defendant engages in
intervening sexual conduct between acts of sexual abuse,
700 State v. Moscote-Saavedra
that intervening conduct cannot, as a matter of law, create
a “sufficient pause” because the acts are all directed toward
the same goal of sexually abusing the victim. Rather, our
holding in Bradley rested on the absence of evidence to estab-
lish any temporal break between the acts of sexual abuse
and the intervening sodomy. There, it was relevant that the
intervening act of sodomy was sexual in nature because “the
evidence showed that the first act of sexual contact that ini-
tiated the abuse—defendant causing the victim to touch his
penis—assisted defendant in the commission of the sodomy.”
Bradley, 307 Or App at 383 (emphasis added). In other words,
that evidence provided evidence of the absence of a temporal
break between those acts. Here, by contrast, the evidence
establishes a temporal break between the first and second
acts of sexual abuse. Further, our statement in Bradley that
the intervening sodomy was “intertwined” with the acts of
sexual abuse was an alternative expression of our conclu-
sion that, consistent with the trial court’s express factual
finding, the preceding act of sexual abuse aided defendant
in committing the sodomy. See id. at 383 (summarizing trial
court’s finding that “ ‘it was clear that there was progression
being used by the defendant to get the defendant to ulti-
mately perform the sodomy,’ ” and stating, “[i]n other words,
the sexual abuse was sufficiently intertwined with defen-
dant’s commission of the sodomy such that, once defendant
initiated the sodomy, the sexual abuse was still ongoing”).
Bradley did not hold that additional sexual contact that is
intertwined with and directed at the overall goal of sexu-
ally abusing a victim can never, as a matter of law, create
a “sufficient pause.” Here, our conclusion that defendant’s
intervening conduct did not create a “sufficient pause” is
based on the absence of evidence from which to infer that
those acts were temporally or qualitatively distinct from the
sexual abuse acts. We therefore need not and do not decide
how, if at all, those intervening acts were intertwined with
defendant’s sexual-abuse acts, or how, if at all, defendant’s
consistent goal of sexually abusing R may affect the suffi-
ciency of the pause.
Lastly, we do not agree with the state that defen-
dant licking defendant’s buttocks was qualitatively differ-
ent conduct from his other acts of sexual abuse, creating
Cite as 320 Or App 682 (2022) 701
a “sufficient pause.” The state’s argument that defendant’s
second act of sexual abuse was done for the somehow distinct
purpose of restoring his erection is inconsistent with the
facts as found by the jury, as reflected in the jury instruc-
tion and its verdict, that all of defendant’s sexual-abuse acts
were committed “for the purpose of arousing or gratifying
[defendant’s] sexual desire.” That undermines any conclu-
sion that his second act of sexual abuse was qualitatively
different. Cf. Moore, 319 Or App at 147-48 (concluding that
the defendant’s conviction for one count of first-degree rape
based on forcible compulsion and one count based on the vic-
tim’s physical helplessness did not constitute qualitatively
different conduct creating a “sufficient pause,” where each
charge was based on different statutory theories of rape,
and both involved “the ongoing rape of a victim who was in
and out of consciousness during the same attack in the same
location”).
To the extent that the state argues that the loss of
defendant’s erection is a significant intervening event cre-
ating a pause sufficient to have afforded him the opportu-
nity to renounce his criminal intent, we do not agree. The
loss of defendant’s erection occurred at the end of interven-
ing sexual conduct which we have already determined was
not evidence creating a “sufficient pause” between his pre-
ceding and following acts of sexual abuse. We are not per-
suaded that the loss of defendant’s erection accompanying
that intervening conduct, in the midst of an ongoing sexual
assault, is sufficient evidence of a significant event that, on
its own, created a pause “so marked in scope or quality,”
Huffman, 234 Or App at 184, that it afforded him the oppor-
tunity to renounce his criminal intent to commit his acts of
sexual abuse.
With regard to the break between defendant’s acts
of touching R’s breast and touching her buttocks, we reach
a similar conclusion. R testified that, after defendant bent
down to lick her buttocks, “he was still trying to * * * regain
the erection and * * * he grabbed my breasts * * * and at the
same time I was trying to like keep his hands off my mouth,
so that I could breathe, and screaming and—while he was
telling me, ‘Be quiet. Just shh, shh, shh.’ ” That testimony
fails to establish that defendant had stopped licking her
702 State v. Moscote-Saavedra
buttocks at the time he grabbed her breast and, because
those acts could have been occurring simultaneously as
the state concedes, therefore fails to establish a “sufficient
pause.” See Ortiz-Rico, 303 Or App at 85 (“[M]erger is appro-
priate where there is no evidence that would permit a rea-
sonable factfinder to find that one crime had ended before
the other began.”). We reject the state’s argument that defen-
dant’s act of licking R’s buttocks supports the sufficiency of
the pause because it was done for a different purpose than
his act of touching her breasts. Even if we agreed with that
argument, it would not establish a “sufficient pause” where,
as here, there is no evidence of a temporal break between
those acts of sexual touching. See West-Howell, 282 Or App
at 397-98 (“one crime must end before another begins and
each crime must be separated from the others by a sufficient
pause” (emphasis in original)).
As for the break between defendant’s first act of rub-
bing his penis against R’s buttocks and his touching of her
breasts, the record does not support a “sufficient pause.” As
we already concluded, defendant’s first act of sexual abuse,
causing R to touch his penis, and his second act, rubbing
his penis against R’s buttocks, constituted sequential acts
of touching. Further, there was no evidence of any break
between defendant licking R’s buttocks and grabbing her
breasts. Thus, for the same reasons that the evidence fails
to establish a “sufficient pause” between defendant causing
R to touch his penis and his act of licking her buttocks, the
evidence fails to establish a “sufficient pause” between his
act of rubbing his penis against R’s buttocks and his act of
grabbing her breasts.
Finally, we conclude that the record does not estab-
lish a “sufficient pause” between defendant causing R to
touch his penis and touching her breasts, or between his
touching of her breasts and touching her anus with his hand
and penis.
As to the break between defendant causing R to
touch his penis and his touching of her breasts, defendant
engaged in the intervening conduct of rubbing his penis
against her buttocks, attempting to penetrate her vagina,
and bending down to lick her buttocks. However, as we have
Cite as 320 Or App 682 (2022) 703
already explained, the record failed to show a “sufficient
pause” between defendant rubbing his penis against her
buttocks, if that act had supported the sexual abuse charge,
and his act of touching her breasts. Because defendant rub-
bing his penis against her buttocks occurred immediately
after his act of causing R to touch his penis had ended, for
the same reasons, we conclude the evidence fails to establish
a “sufficient pause” between causing R to touch his penis
and touching her breasts.
As to the break between defendant touching R’s
breasts and his final two acts of touching her anus with his
hand and penis, the evidence also falls short of establishing
a “sufficient pause.” R testified that after defendant licked
her buttocks and grabbed her breast, which caused his erec-
tion to return, he began rubbing his penis against her anus
and incidentally touching her anus with his hand until he
ejaculated. That testimony fails to provide evidence of the
durational break between defendant touching R’s breasts
and his next acts of touching her anus with his hand and
penis beyond sequential acts of touching, nor does it describe
how long defendant engaged in the final acts of touching of
her anus before he ejaculated. It does not therefore establish
a “sufficient pause.”
Although this event occurred over a 30-minute period,
the entire event occurred while R was lying on her side with
defendant behind her and, as R testified, at the time the
assault ended “his hand was still over [her] mouth” and the
“knife was on [her] side.” We cannot conclude on this record
that the state has met its burden to overcome the presump-
tion that repeated violations of the same statutory provi-
sion in the same criminal episode merge based on the pas-
sage of 30 minutes without some evidence of the duration
of the break between each act of sexual abuse, or without
more detail about the intervening acts that would allow for
a nonspeculative inference that those acts created a pause
so marked in scope or quality that it afforded defendant an
opportunity to renounce his criminal intent between com-
mitting the acts of sexual abuse. Compare Lasheski, 309
Or App at 143-44, 148-49 (evidence underlying the defen-
dant’s convictions for three counts of sexual abuse based on
704 State v. Moscote-Saavedra
his touching of the victim over “an hour or two” failed to
support a “sufficient pause” between each act where no evi-
dence as to the timing of each act of touching in relation to
the other, no evidence as to “how much time elapsed from
when the victim rolled over, trying to escape the touching
of her vaginal area, and when defendant started rubbing
her buttocks,” and no evidence of a significant intervening
event), with Zachery, 304 Or App at 480 (evidence showed
that defendant had an opportunity to renounce his criminal
intent supporting a “sufficient pause” between defendant’s
two groups of unlawful contacts of the victim, based on the
passage of 30 minutes between those contacts where the
“defendant was not in the same physical space as [the vic-
tim] and [allowed for the inference that he] would have been
able to do any number of things in that period of time, such
as watching a half-hour television show, the typical length
of a late local news broadcast and many other programs”;
and based on the second group of contacts being directed at
a different subject from the first group of contacts).
In sum, the record does not establish a “sufficient
pause” within the meaning of ORS 161.067(3) between defen-
dant’s acts of sexual abuse. Because of that conclusion, as
the state concedes, we need not allow the court to recon-
sider its merger ruling on remand and therefore reverse and
remand the convictions on Counts 3, 4, and 5 for entry of a
single conviction for first-degree sexual abuse.
Convictions on Counts 3, 4, and 5 reversed and
remanded for entry of judgment of conviction for one count
of first-degree sexual abuse; remanded for resentencing;
otherwise affirmed.