State v. Moscote-Saavedra

ORS 161.067(3) states that the criminal acts “. . . 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.”

 Defendant appealed his conviction for first-degree sexual abuse (counts 3, 4, and 5). Defendant assigned error to the trial court’s failure to merge the guilty verdicts on Counts 3, 4, and 5 into a single conviction, because the sexual contact occurred during the same criminal encounter against the same victim. The State argued that there was a “sufficient pause” between each act of sexual abuse. ORS 161.067(3) states that the criminal acts “. . . 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,” to warrant consecutive sentences, rather than a merger. The Court agrees with the state in terms of the trial court relying on the wrong legal standard of consecutive sentencing and not the merger statute but overall agrees with the defendant that the record does not contain the evidence necessary to prove a “sufficient pause” between the incidences of sex abuse. Reverse and remand the convictions on Counts 3, 4, and 5 for entry of a single conviction and otherwise affirm.