State v. B. L. F. ( 2023 )

636
This is a nonprecedential memorandum opinion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 September 15, 2022; orders of commitment vacated and remanded
for written findings under ORS 419C.478(1); adjudications for first-
degree rape (Count 6) and second-degree sexual abuse (Count 7) reversed and
remanded for entry of a judgment reflecting adjudication for a single count of
first-degree rape and for redisposition, otherwise affirmed January 5, 2023
In the Matter of B. L. F.,
a Youth.
STATE OF OREGON,
Respondent,
v.
B. L. F.,
Appellant.
Crook County Circuit Court 20JU05847;
A175216 (Control), A175217, A175220,
A175221, A175222, A175223
Daina A. Vitolins, Judge.
Erica Hayne Friedman and Youth, Rights & Justice filed
the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and E. Nani Apo, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and
Hellman, Judge.
HELLMAN, J.
Orders of commitment vacated and remanded for writ-
ten findings under ORS 419C.478(1). Adjudications for first-
degree rape (Count 6) and second-degree sexual abuse
(Count 7) reversed and remanded for entry of a judgment
reflecting adjudication for a single count of first-degree rape
and for redisposition; otherwise affirmed.
Nonprecedential Memo Op: 323 Or App 636 (2023) 637
HELLMAN, J.
Youth appeals from a delinquency disposition judg-
ment. On appeal, youth raises five assignments of error. For
the following reasons, we vacate the orders of commitment
and remand for written findings under ORS 419C.478(1),
reverse and remand the adjudications for first-degree
rape (Count 6) and second-degree sexual abuse (Count 7)
for entry of a judgment reflecting adjudication for a single
count of first-degree rape and for redisposition, and other-
wise affirm.
In his first three assignments of error, youth argues
that the evidence was insufficient for the juvenile court to
adjudicate him delinquent for four counts of second-degree
sexual abuse and first-degree rape. Youth contends he pre-
served the errors in his closing argument. After a review of
the record, we disagree with youth’s contention and conclude
that youth’s arguments were not preserved. See State v.
A. E. J., 317 Or App 363, 365, 505 P3d 422 (2022) (explain-
ing that a closing argument must “sufficiently identify the
asserted legal insufficiency as such, and not merely argue
that the court should not be persuaded by the state’s evi-
dence”). Accordingly, we do not address them.
In his fourth assignment of error, youth asserts that
the juvenile court plainly erred because it failed to merge
the adjudication for sex abuse in the second degree (Count 7)
into the adjudication for first-degree rape (Count 6). The
state concedes that the charges “were based on the same
incident” and that the error qualifies for plain-error review.
Because merger principles apply in juvenile delin-
quency proceedings, State v. K. R. S., 298 Or App 318, 323,
449 P3d 511 (2019), we accept the state’s concession and
exercise our discretion to correct the error for the reasons
stated in State v. Sheikh-Nur, 285 Or App 529, 533, 398 P3d
472, rev den, 361 Or 886 (2017). See State v. Jefferson, 311
Or App 754, 487 P3d 450 (2021) (accepting the state’s con-
cession and exercising discretion to correct the trial court’s
error in failing to merge convictions for first-degree rape
and second-degree sexual abuse).
In his fifth assignment of error, youth argues that
the juvenile court erred when it failed to provide written
638 State v. B. L. F.
findings pursuant to ORS 419C.478(1). We agree. The juve-
nile court’s findings of “case planning” and “placement
purposes” do not describe why placement in Oregon Youth
Authority custody is in youth’s best interests and thus did
not satisfy the statute’s requirements. See, e.g., State v.
S. D. M., 318 Or App 418, 420, 506 P3d 1190 (2022) (conclud-
ing that the juvenile court’s finding that “youth violated the
requirements of probation; he did not follow the rules of sex
offender treatment” did not satisfy ORS 419C.478(1)).
Orders of commitment vacated and remanded for
written findings under ORS 419C.478(1). Adjudications for
first-degree rape (Count 6) and second-degree sexual abuse
(Count 7) reversed and remanded for entry of a judgment
reflecting adjudication for a single count of first-degree rape
and for redisposition; otherwise affirmed.