Opinion
A174743
07-13-2022
STATE OF OREGON, Plaintiff-Respondent, v. CLAUDIO VALENTIN-ESPINOZA, Defendant-Appellant.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Morgen E. Daniels, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General, fled the brief for respondent.
This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1).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, 2022
Washington County Circuit Court C150753CR; Oscar Garcia, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Morgen E. Daniels, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General, fled the brief for respondent.
Before Ortega, Presiding Judge, and Powers, Judge, and Hellman, Judge.
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 unlawful 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 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 criminal intent." Both sexual abuse counts involved the same criminal episode 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 P.3d 470 (2018) and State v. Sheikh-Nur, 285 Or.App. 529, 398 P.3d 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.