State v. Moore ( 2022 )

136
Submitted October 20, 2020; convictions on Counts 1 and 2 reversed and
remanded for entry of judgment of conviction for one count of first-degree rape,
remanded for resentencing, otherwise affirmed April 20; petition for review
denied October 6, 2022 (370 Or 303)
STATE OF OREGON,
Plaintiff-Respondent,
v.
JIHAD ELDEEN MOORE,
aka Jihad Eldeen Moore, Jr.,
Defendant-Appellant.
Multnomah County Circuit Court
18CR13996; A169841
510 P3d 907
Defendant appeals from a judgment of conviction for two counts of first-degree
rape and one count of first-degree sodomy. He assigns error to (1) the trial court’s
denial of a motion to dismiss because the statute of limitations for his offenses
had expired, (2) the trial court’s denial of a motion to suppress inculpatory state-
ments to police because they were involuntary, and (3) the trial court’s failure to
merge the verdicts on the two counts of first-degree rape into a single conviction
because there was no “sufficient pause” in criminal conduct as required by ORS
161.067(3). The state argues that the two counts of first-degree rape should not
merge because they are “qualitatively different,” and one was charged as “forcible
compulsion” and the other as “physical helplessness.” Held: The Court of Appeals
rejected defendant’s first assignment of error because the statute of limitations
was lawfully extended and applied retroactively to his offenses. It rejected the
second assignment of error without further discussion. For the convictions of
two counts of first-degree rape, the trial court erred by failing to merge the two
counts because there was not a sufficient pause as defined by ORS 161.067(3) and
State v. Bradley, 307 Or App 374, 477 P3d 409 (2020), modified on recons, 309 Or
App 598, 477 P3d 409 (2021).
Convictions on Counts 1 and 2 reversed and remanded for entry of judgment
of conviction for one count of first-degree rape; remanded for resentencing; other-
wise affirmed.
Thomas M. Ryan, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
Cite as 319 Or App 136 (2022) 137
Before James, Presiding Judge, and Lagesen, Chief Judge,
and Kamins, Judge.
JAMES, P. J.
Convictions on Counts 1 and 2 reversed and remanded for
entry of judgment of conviction for one count of first-degree
rape; remanded for resentencing; otherwise affirmed.
138 State v. Moore
JAMES, P. J.
Defendant appeals from a judgment of conviction
for two counts of first-degree rape (Counts 1 and 2), ORS
163.375, and one count of first-degree sodomy (Count 3),
ORS 163.405, raising three assignments of error. We reject
his second assignment without discussion and write only to
address the first and third. In the first, defendant claims
that the trial court erred by denying a motion to dismiss
because the statute of limitations for his offenses had already
expired. In the third, defendant argues that the trial court
erred when it failed to merge the verdicts on the two counts
of first-degree rape into a single conviction because there
was no “sufficient pause” in criminal conduct as required by
ORS 161.067(3). For the reasons explained below, we reject
defendant’s argument regarding the statute of limitations,
but we agree with defendant regarding merger. We there-
fore reverse and remand the convictions on Counts 1 and 2
for entry of a single conviction, and otherwise affirm.
In November 2017, Portland police detectives identi-
fied defendant as a suspect in a 1996 sexual assault by test-
ing the “rape kit” that was collected when the victim went
to the emergency room after the attack. Defendant’s DNA
profile matched the DNA profile found in the collected evi-
dence, and based on that evidence, the state charged defen-
dant. At trial, the victim testified that in 1996 defendant
had invited her to share drugs with him. He took her to a
secluded place, but then strangled her to the point where
she lost consciousness. When she awoke, defendant was rap-
ing her. After the victim regained consciousness, defendant
forced her to perform oral sex. He also threatened her with a
firearm and robbed her. After the attack, the victim sought
medical help and contacted police, who initiated the investi-
gation that ultimately led to the arrest of defendant decades
later.
Defendant’s first assignment of error concerns the
statute of limitations. There are three limitations periods at
issue because of the gap between the assault in 1996 and the
testing of the rape kit in 2017. At the time of the charged inci-
dent in 1996, the applicable limitations period was six years.
ORS 131.125 (1995). In 2001, before the six-year limitations
Cite as 319 Or App 136 (2022) 139
period had run, the legislature enacted a 12-year limita-
tions period, provided that the defendant was identified on
the basis of a DNA sample comparison, but the legislature
did not expressly address the issue of retroactivity. Or Laws
2001, ch 375, § 1. Then, in 2007, the legislature enacted a
25-year limitations period and explicitly made it retroac-
tive to apply to crimes committed before its effective date, if
the prior limitations period had not expired. Or Laws 2007,
ch 840, §§ 1-2.
Defendant argues on appeal, as he did at trial, that
because the legislature did not expressly make the 2001
amendment to the limitations period retroactive, the limita-
tions period for the 1996 assault expired six years after the
date of the offenses and could not later be revived by opera-
tion of the 2007 amendments—which extended the statute of
limitations to 25 years—without violating the constitutional
prohibition against ex post facto laws. As defendant argues,
“[w]hen the legislature wants to make a statute of limita-
tions extension apply retroactively, it has said so explicitly.”
Defendant contrasts the 2007 amendments, Or Laws 2007,
ch 840, § 2, which increased the limitations period to 25
years and included a retroactivity clause, with the legisla-
tive silence in the 2001 amendment.
The state responds that when the legislature
extended the statute of limitations period in 2001 from six
to 12 years for the crimes of rape and first- or second-degree
sodomy, it intended for the change to apply retroactively to
pertinent offenses that were still within the six-year lim-
itations period. Under the statutory interpretation frame-
work set out in State v. Gaines, 346 Or 160, 206 P3d 1042
(2009), the state argues that the statute’s text in context
and legislative history show that the legislature extended
the limitations period to address the problem of unresolved
sexual assault cases that had DNA evidence that were run-
ning up against the original six-year limitations period.
Furthermore, the state argues that there is no prohibition
on retroactivity set out in the plain language of the amended
statute’s text, Or Laws 2001, ch 375, § 1. The state argues
that, under our case law, “[i]n both civil and criminal con-
texts, enlarged Statutes of Limitations have applied retro-
actively, but only for claims that were not yet barred by the
140 State v. Moore
previous limitation.” Ritcherson v. State of Oregon, 131 Or
App 183, 187, 884 P2d 554 (1994), rev den, 320 Or 507 (1995)
(citing Nichols v. Wilbur, 256 Or 418, 419-20, 473 P2d 1022(1970); State v. Dufort, 111 Or App 515, 519, 827 P2d 192(1992)).
We review a trial court’s interpretation of a statute
as a question of law. Gaines, 346 Or at 171-72; Rhodes v.
Eckelman, 302 Or 245, 248, 728 P2d 527 (1986) (“In deter-
mining the effect to be given to a statute—whether denom-
inated ‘prospective,’ ‘retroactive’ or something else—the
function of the court is to ‘discern and declare’ the intent
of the legislature.”). Our interpretation of a statute is gov-
erned by the three-part test set out in Gaines, 346 Or at
171-72. The first and most important step is an examination
of the text and context. That is followed by a consideration
of the legislative history if it is useful for our analysis, and
we must determine its “evaluative weight.” Id. If the legisla-
ture’s intent remains unclear after examining text, context,
and legislative history, we may resort to general maxims
of statutory construction to aid in resolving the remaining
uncertainty. Id. at 172.
We begin with the statute at issue, which is the
2001 amendment to ORS 131.125 set out in Oregon Laws
2001, chapter 375, section 1:
“(8) Notwithstanding subsection (2) of this section, a
prosecution for rape in the first or second degree or sodomy
in the first or second degree may be commenced within 12
years after the commission of the crime if the defendant is
identified after the period described in subsection (2) of this
section on the basis of DNA (deoxyribonucleic acid) sample
comparisons.”
Except for the provision in subsection (8) to extend the lim-
itations period to 12 years if the defendant is identified on
the basis of DNA, the legislature maintained the six-year
limitations period set out in subsection (2).
The text of ORS 131.125(8) (2001) as amended does
not explicitly address whether the new limitations period
applies retroactively. However, the language of the statute
does not preclude its retroactive application. Indeed, subsec-
tion (8) specifies that “a prosecution * * * may be commenced
Cite as 319 Or App 136 (2022) 141
within 12 years after the commission of the crime if the
defendant is identified after the period described in subsec-
tion (2).” Therefore, nothing in the plain language of the stat-
ute contradicts the extension of the limitations period for the
listed offenses if the original six-year limitations period has
not already run. Indeed, the statute’s text denotes that in
the particular circumstance that a defendant is identified by
DNA analysis, the limitations period set out in subsection (2)
is extended to 12 years. However, the plain language of
the statute does not resolve whether it extends an existing
period of limitations that has not yet run.
As we have noted, “[i]n both civil and criminal con-
texts, enlarged Statutes of Limitations have been applied
retroactively, but only for claims that were not yet barred
by the previous limitation.” Ritcherson, 131 Or App at 187(citations omitted). In Dufort, we held that the extension of
the limitations period for the criminal statute at issue did
not violate the ex post facto provisions in either the state
or federal constitutions because “[a]n extension of a limita-
tion does not punish acts that were legal at the time they
occurred or impose a greater punishment.” 111 Or App at
520. Furthermore, we concluded that, even though the leg-
islature had not expressly made the increased limitations
period retroactive, it was “consistent with the purpose of
[the] legislative change” to conclude that the amended lim-
itations period “applie[d] to incidents of sexual abuse that
had not yet been barred under the previous statute.” Id. at
519.
We reach a similar conclusion in this case in light
of the legislative history of the 2001 amendment. The
amendment to ORS 131.125 originated in the House of
Representatives as House Bill (HB) 2663 (2001). The com-
mittee discussed the retroactive application of the limita-
tions period at a public hearing on the bill. Tape Recording,
House Committee on Judiciary, Subcommittee on Criminal
Law, HB 2663, Mar 27, 2001 (testimony of Dale Penn of the
Oregon District Attorneys Association). When asked by leg-
islative counsel about the prospective or retroactive applica-
tion of the limitations period, Penn responded that it would
not apply to a limitations period that had already run, and
he pointed to case law on the topic, stating, “A statutory
142 State v. Moore
change would only extend those cases where the statute
has not run.” Penn further remarked that the existing DNA
database was getting close to six years old and that was
the importance of passing the legislation to extend the lim-
itations period so that the collected samples would remain
viable for criminal prosecution.
Moreover, Tom Dixon, the director of the state’s
forensic services division, testified in support of the bill; he
explained that hundreds of unsolved rapes occurred each
year and that there were over 5,000 unsolved rapes that
had been committed in Oregon in the past six years. Dixon
remarked that the statute of limitations was about to run
before the offenders could be found, and he cited examples
of sexual assaults from 1996 and 1997 that had recently
been solved because of developments in DNA technology.
Representative Lowe expressed concern about proving the
chain of custody for DNA evidence if the limitations period
were to be increased to 20 years. The bill that passed reduced
the proposed 20-year limitations period to a 12-year period.
Considering that clear legislative history, we con-
clude that the amendments were intended to extend the lim-
itations period in the case of incidents of sexual abuse that
had not yet been barred under the previous statute. The leg-
islature sought to maintain the viability of DNA evidence
for criminal prosecutions where the existing six-year limita-
tions period would preclude the use of inculpatory evidence
that was languishing in the state’s custody. The amend-
ments to ORS 131.125(8) occurred against the backdrop
of recent advances in DNA technology that were critically
important for testing evidence in unsolved rape investiga-
tions that were running up against the original limitations
period. The legislature intended to remedy the problem by
extending the limitations period and making that extension
applicable to offenses for which that limitations period had
not yet expired.
The parties agree that if the limitations period
was lawfully extended by the 2001 amendment, the 2007
amendment that extended the limitations period to 25-years
would apply to defendant, thus making that 25-year period
the applicable limitations period. Given that defendant was
Cite as 319 Or App 136 (2022) 143
prosecuted well within that limitations period, we reject his
statute-of-limitations argument.
In defendant’s third assignment of error, he claims
that the trial court erred by failing to merge the guilty ver-
dicts on two counts of first-degree rape, Counts 1 and 2,
into a single conviction, arguing that they are based on the
same conduct and charged under the same statutory pro-
vision. Defendant contends that there was not a “sufficient
pause,” ORS 161.067(3), interrupting his criminal conduct
that would allow the court to sentence him for two separate
counts of first-degree rape. We agree with defendant that
the state failed to establish a “sufficient pause,” as defined
by ORS 161.067(3), and we reverse and remand for merger
and resentencing.
At trial, the victim testified about the circumstances
of the assault:
“[WITNESS:] We were sitting side by side.
“[PROSECUTOR:] And what happened next?
“[WITNESS:] I looked over at him and he looked at me
and he grabbed me around the throat and started stran-
gling me. And I tried to run and then I went and passed
out.
“[PROSECUTOR:] Do you remember how long you
were passed out for?
“[WITNESS:] I don’t know.
“[PROSECUTOR:] What’s the next memory that you
have?
“[WITNESS:] I just remember hearing dripping and
feeling dripping and—what is that? And I realized that it
was blood coming out of my nose. And then I realized that
he was behind me, having sex with me. And so I tried to get
into a runner’s position so that I could run away. And, at
that point, he realized that I was awake and so he flipped
me over and made me give him oral sex. And then he was
done and some point—I don’t know if it was when he was—
when I was giving him oral sex, if he told me he had a gun
or if it was when he was taking my jewelry, my watch and
my rings, then he told me he had a gun and so then he
robbed me.”
144 State v. Moore
In addition to the victim’s testimony, the state
offered defendant’s statements made under interrogation
in the form of both a redacted transcript and the complete
audio and video recordings. After initially denying that he
had had sex with the victim, defendant later claimed that
the sex was consensual. Detectives questioned him further,
and he admitted that “I did something against someone’s
will.” Defendant recounted that “[s]he said no” and “I contin-
ued anyway.”
At sentencing, the prosecutor argued that, “[a]s the
facts came out at trial, the defendant began raping the vic-
tim while she was physically helpless because he had ren-
dered her unconscious by choking her. And then [upon the
victim regaining consciousness he] continued holding her
down as she tried to get away.” In response, the trial court
determined that, “[w]ith respect to the request to merge
Counts 1 and 2, that request is denied. There was sufficient
pause to reflect and consider. The defendant continued to
engage in the rape following those pauses or—and over—
across that period of time.”
On appeal, the state concedes that this is a “close
case” but maintains that the record supported the trial
court’s factual determination that there was a “sufficient
pause” providing defendant time to renounce his criminal
intent. The state asserts, “Collectively, the evidence sup-
ports a finding that defendant thus committed two qualita-
tively different rapes: the first was the rape of a victim who
[was] incapacitated: when defendant strangled the victim
and penetrated her while she was unconscious. Then, imme-
diately after the victim regained consciousness, a second
qualitatively different rape occurred—a violent rape com-
mitted through forcible compulsion.” The state continues,
“The awakening of [the] victim in this case was a transfor-
mative intervening event * * * [that] afforded defendant an
opportunity to stop and renounce his intent.”
We review the trial court’s ruling on whether to
merge the guilty verdicts for legal error and are bound
by the trial court’s factual findings if there is consti-
tutionally sufficient evidence in the record to support
them. State v. Bradley, 307 Or App 374, 379, 477 P3d 409
Cite as 319 Or App 136 (2022) 145
(2020), modified on recons, 309 Or App 598, 477 P3d 409
(2021).
ORS 161.067(3), the so-called “antimerger” statute,
provides:
“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. Each method of engaging in
oral or anal sexual intercourse as defined in ORS 163.305,
and each method of engaging in unlawful sexual penetra-
tion as defined in ORS 163.408 and 163.411 shall consti-
tute separate violations of their respective statutory provi-
sions for purposes of determining the number of statutory
violations.”
As we explained in Bradley, under ORS 161.067(3)
a court can enter multiple convictions for criminal conduct
involving the same conduct or criminal episode, same vic-
tim, and same statutory provision only if the violations are
separated from one another by a “sufficient pause” in the
defendant’s criminal conduct. 307 Or App at 380. A “suffi-
cient pause” occurs when “there is ‘a temporary or brief ces-
sation of a defendant’s criminal conduct that occurs between
repeated violations and is so marked in scope or quality that
it affords defendant the opportunity to renounce his or her
criminal intent.’ ” Id. at 380-81 (quoting State v. Huffman,
234 Or App 177, 184, 227 P3d 1206 (2010)); State v. West-
Howell, 282 Or App 393, 397-98, 385 P3d 1121 (2016),
rev den, 361 Or 312 (2017) (“[T]o 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.)).
In Bradley, the defendant contested entry of two sep-
arate sexual abuse convictions based on a sexual episode that
146 State v. Moore
occurred over a short period of time on the floor of a garage.
The defendant showed the victim how to hold his penis and
then instructed the victim to put her mouth on it, and then
the defendant touched her vagina. The victim testified that
the incident was interrupted when her sister knocked on the
door after the final act of sexual abuse occurred. 307 Or App
at 381. We concluded that no reasonable factfinder could
have concluded that there was any temporal break or pause
in the defendant’s aggression between the two acts of sexual
abuse “such that one crime ended before another began.” Id.Critically, “[t]here was no evidence of a break between the
sexual contact underlying the sexual abuse and the initia-
tion of the sodomy.” Id. at 382-83. Thus, for the purposes of
merger, the question is “whether the pause in defendant’s
criminal conduct was ‘so marked in scope or quality that it
affords a defendant the opportunity to renounce his or her
criminal intent.’ ” Id. at 385 (quoting Huffman, 234 Or App
at 184 (emphasis added)). Said differently, when the inter-
vening conduct is “intertwined with the conduct underlying
the crimes sought to be merged and assisted defendant in
achieving his overall criminal objective of sexually abusing
the victim, that the intervening conduct was of a similar
nature is relevant to the sufficiency of the pause issue * * *.”
Bradley, 307 Or App at 386 (emphasis added).
Here, the victim testified that defendant began
raping her while she was unconscious after he grabbed her
throat and she passed out before she could run away. When
she awoke, he was engaged in the ongoing sexual assault,
and that assault continued. The state contends that defen-
dant committed two “qualitatively different rapes”: the first
rape was when defendant strangled the victim and started
raping her while she was unconscious, and the second rape
occurred when defendant continued the assault through
forcible compulsion after she awoke. Although the state con-
cedes that the rapes occurred “in succession,” it argues that
the qualitatively different nature of them precludes merger
because “[t]he awakening of [the] victim in this case was a
transformative intervening event which stopped the initial
rape * * *.”
We are not persuaded that this record contains suf-
ficient evidence that the victim’s coming to consciousness
Cite as 319 Or App 136 (2022) 147
provided a “sufficient pause” for defendant to renounce his
criminal intent for purposes of the anti-merger statute.
Under that statute, it is the state’s burden, “as the party
asserting that [the] defendant’s conduct * * * is ‘separately
punishable’ for purposes of ORS 161.067(3),” to adduce
legally sufficient evidence of the requisite sufficient pause.
State v. Nelson, 282 Or App 427, 443, 386 P3d 73 (2016).
As the state concedes, the conduct that constituted the rape
was ongoing at the time defendant strangled the victim and
after she returned to a conscious state. In other words, the
assaultive conduct before and after the victim awoke was
intertwined with the conduct underlying the two counts of
rape. Furthermore, there was no evidence of any temporal
break—no “sufficient pause”—between the successive acts
to suggest that one rape ended before the other began. See
State v. Campbell, 265 Or App 132, 139, 333 P3d 1220 (2014)
(concluding that the “continuous and uninterrupted attack
of a victim” required merger of multiple counts of assault for
shooting the victim several times with a BB gun).
The state turns to our decision in West-Howell for
authority that there was a sufficient pause in the instant
case. There, we affirmed the trial court’s refusal to merge
guilty verdicts on two counts of first-degree sodomy based
on a “sufficient pause” that occurred in the defendant’s con-
duct. The defendant had forced the victim to perform oral
sex on him for five to 10 minutes, moved her to a bed, and
then strangled her to the point where she lost consciousness.
Id. at 395-96. When the victim regained consciousness, the
defendant attempted, unsuccessfully, to rape her. She fought
off the defendant, and then the defendant once again forced
her to perform oral sex on him. The different acts of sod-
omy, we explained, were separated by “assaultive conduct
of a different nature.” Id. at 400. We concluded that “[t]he
issue is not * * * whether there existed a pause sufficient to
renounce any criminal intent. Rather, the operative ques-
tion is whether the pause between the two acts of sodomy
was sufficient to allow defendant to renounce his intent to
commit sodomy[.]” Id. at 400-01 (emphasis in original).
The state theorizes that because defendant was
convicted of one count of first-degree rape based on “forcible
compulsion” and the second count of rape based on “physical
148 State v. Moore
helplessness,” the “qualitatively different” nature of the rapes
precludes merger, which the state argues is analogous to the
differences separating the counts of sodomy in West-Howell
for discerning a sufficient pause in which defendant could
renounce his criminal intent. We disagree. Oregon case law
makes clear that the different elements of first-degree rape
such as “forcible compulsion” or “physical helplessness” do
not constitute different crimes, because they are part of the
same statutory section. State v. Parkins, 346 Or 333, 347-55,
211 P3d 262 (2009) (detailing the analysis to determine the
legislature’s intent for creating a single crime); Bumgarner
v. Nooth, 254 Or App 86, 94, 295 P3d 52 (2012) (concluding
that two first-degree rape convictions that arose out of the
same conduct but were based on charging different elements
under the rape statute should have merged). Moreover, the
sequence of the assault in West-Howell is readily distin-
guishable: That case involved two counts of sodomy sepa-
rated by a series of other acts and movements, including the
defendant moving the victim to a bed, strangling 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. 282 Or App at 395-96. This
case involves the ongoing rape of a victim who was in and
out of consciousness during the same attack in the same
location.
We conclude that the state failed to present suf-
ficient evidence that defendant’s counts of raping the vic-
tim were based on acts separated by a “sufficient pause.”
Accordingly, the trial court erred when it failed to merge the
guilty verdicts on those two counts of first-degree rape.
Convictions on Counts 1 and 2 reversed and
remanded for entry of judgment of conviction for one count
of first-degree rape; remanded for resentencing; otherwise
affirmed.