State v. Valentin-Espinoza ( 2022 )

799
This is a nonprecedential memorandum opinion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 21; convictions on Counts 2 and 3 reversed and remanded for
entry of a judgment of conviction for one count of first-degree sexual abuse,
remanded for resentencing, otherwise affirmed July 13; petition for review
denied October 20, 2022 (370 Or 404)
STATE OF OREGON,
Plaintiff-Respondent,
v.
CLAUDIO VALENTIN-ESPINOZA,
Defendant-Appellant.
Washington County Circuit Court
C150753CR; A174743
Oscar Garcia, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Morgen E. Daniels, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jennifer S. Lloyd, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
PER CURIAM
Convictions on Counts 2 and 3 reversed and remanded
for entry of a judgment of conviction for one count of first-
degree sexual abuse; remanded for resentencing; otherwise
affirmed.
800 State v. Valentin-Espinoza
PER CURIAM
Defendant appeals his convictions on one count of
first-degree unlawful sexual penetration (Count 1), ORS
163.411, and two counts of first-degree sexual abuse (Counts
2 and 3), ORS 163.427. He argues that the trial court erred in
denying his motion for judgment of acquittal on the unlaw-
ful sexual penetration count; we conclude that the evidence
was sufficient to support his conviction on that count. He
also argues that the trial court plainly erred in failing to
merge the two counts of first-degree sexual abuse. The state
concedes that they should have merged and agrees that this
court should exercise discretion to correct it as plain error.
We agree with the state’s concession.
Under ORS 161.067(3), when a defendant during a
criminal episode violates only one statutory provision and
the episode 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.”
Both sexual abuse counts involved the same criminal epi-
sode and the same victim. As the state concedes, there is
no evidence in the record that there was a “sufficient pause”
between the crimes to be separately punishable under ORS
161.067(3). For the reasons set forth in State v. Loving, 290
Or App 805, 417 P3d 470 (2018) and State v. Sheikh-Nur,
285 Or App 529, 398 P3d 472, rev den, 361 Or 886 (2017), we
exercise discretion to correct the error.
Convictions on Counts 2 and 3 reversed and
remanded for entry of a judgment of conviction for one count
of first-degree sexual abuse; remanded for resentencing;
otherwise affirmed.