State v. Lasheski

309 Or.App. 140

481 P.3d 966

STATE of Oregon, Plaintiff-Respondent,

v.Jeffrey Lee LASHESKI, Defendant-Appellant.

A165490

Court of Appeals of Oregon.

Submitted May 30, 2019.

February 3, 2021

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, 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.

Before DeHoog, Presiding Judge, and Aoyagi, Judge, and Hadlock, Judge pro tempore.

HADLOCK, J. pro tempore.

Defendant sexually assaulted the 12-year-old daughter of a woman with whom he had a long-standing friendship. On appeal from a judgment of conviction for three counts of first-degree sexual abuse, defendant raises three assignments of error, challenging (1) the admission of certain uncharged-misconduct evidence at trial, (2) the trial court's refusal to merge the three counts of sexual abuse, and (3) the sentence imposed on those convictions, which includes a 75-month incarceration term on each of the three counts, all to run concurrently. In a supplemental assignment of error, defendant argues that his convictions must be reversed because the trial court instructed the jury that ten guilty votes would be sufficient to support a guilty verdict. He acknowledges, however, that the verdicts in this case were all unanimous. We reject defendant's first assignment of error without discussion. We reject defendant's supplemental assignment of error for the reasons set out in State v. Ciraulo , 367 Or. 350, 478 P.3d 502 (2020). For the reasons set out below, however, we conclude that the trial court erred when it failed to merge the three counts of sexual abuse. Accordingly, we reverse the convictions, remand for entry of a judgment of conviction on a single count of first-degree sexual abuse, and remand for resentencing. Because that resolution of the second assignment of error requires resentencing, we do not reach defendant's third assignment of error.

As this opinion focuses on defendant's argument that the trial court erred when it refused to merge the three counts of sexual abuse, we discuss only those aspects of the evidentiary and procedural record that are pertinent to that challenged ruling. We are bound by the trial court's factual findings so long as constitutionally adequate evidence in the record supports them. State v. Ortiz-Rico , 303 Or. App. 78, 84, 462 P.3d 741 (2020). Because defendant was convicted, "we state the facts underlying the trial court's rulings in the light most favorable to the state; that is, in the light most favorable to the trial court's conclusion that merger was not required." Id . at 80, 462 P.3d 741 (citation and internal quotation marks omitted). We review the trial court's ultimate ruling on merger for legal error. Id . at 84, 462 P.3d 741.

Defendant and the victim's mother have known each other for many years. The victim, who was 16 years old at the time of trial, testified that defendant had been like a father figure to her while she was growing up. Defendant, the victim, and her mother sometimes engaged in outdoor activities together, and defendant and the victim also did things on their own, like camping on weekends.

The last time that defendant and the victim went camping together was when the victim was 12 years old. The victim testified that she and defendant shared a tent that they set up on a hill "basically in the middle of nowhere." At some point during the night, the victim woke up and defendant "was touching" her. The victim "didn't really think much of it because [she] was tired" and she "wouldn't want to think about what * * * someone [she] cared about and someone that [she] trusted with [her] life." The victim woke a few times and then "finally woke up and realized well, this is actually happening." Defendant "was still doing that" when she woke up. She tried to roll away from defendant "a few times," but he pulled her back. The victim did not show defendant that she was awake because she "didn't know what he would do if he knew that [she] knew" what was happening.

The victim also testified about the specific ways in which defendant sexually abused her that night. At one point, defendant rubbed the victim's vaginal area and then, "when [she] turned over he put his hands underneath [her] pants and touched [her] backside." Defendant also touched the victim's breasts with his hands. After the victim described that sexual abuse, the prosecutor asked what else defendant had done, and the victim responded, "He played with my backside and my front," stating that defendant was "rubbing [her vaginal area] still" and "[m]essing and rubbing it with his hands." The victim felt sad, upset, and confused; she trusted defendant and loved him, and she did not understand "why he would do this."

After an hour or two, the touching stopped when defendant left the tent to relieve himself. When defendant came back to the tent, the victim told him that she had just woken up and that she wanted to sleep in defendant's car because she was cold and scared of things outside. The real reason she went to sleep in the car was because she "didn't want it to happen again." Defendant took the victim home the next day. The victim told her stepfather and a family friend some of what had happened and the police were called.

Defendant eventually was charged with three counts of first-degree sexual abuse (Counts 1, 2, and 3) and two counts of second-degree unlawful sexual penetration (Counts 4 and 5). Each count of sexual abuse alleged that defendant had unlawfully subjected the victim to sexual contact by touching a sexual or intimate part.¹ The charges differed only with respect to which part of the victim's body defendant was alleged to have touched: Count 1 alleged that defendant touched the victim's breasts; Count 2 alleged that he touched her vaginal area; and Count 3 alleged that he touched her buttocks. The indictment later was amended by interlineation to indicate that all alleged conduct was of the same or similar character, or was based on the same act or transaction, or was based on multiple acts or transactions that were connected or constituted part of a common scheme or plan.

The case was tried to a jury, and the state dismissed one count of unlawful sexual penetration after it rested its case. The jury convicted defendant on the three counts of sexual abuse and acquitted him of the remaining count of unlawful penetration.

In conjunction with sentencing, defendant argued that the three counts of sexual abuse should merge into a single conviction because all of his criminal conduct occurred during a single episode without a "sufficient pause," the unlawful conduct stopped when defendant left the tent to relieve himself, and the conduct "constitute[d] an uninterrupted criminal act for which one conviction is required by law." In response, the state emphasized the victim's testimony that she fell asleep and awoke more than once during the sexual assault, rolling away from defendant, and the state argued that those periods of sleep and rolling away separated the three acts of sexual abuse, allowing for entry of a separate conviction for each count.

The trial court denied defendant's request to merge the counts, ruling that the record included "evidence to demonstrate a sufficient pause for [defendant] to reconsider and renounce his criminal intent between acts" and that defendant nonetheless chose, instead, to move from touching one part of the victim's body to another part. The court emphasized its view that the victim's action in rolling away communicated something to defendant and gave him "an opportunity to reconsider his behavior in that moment." The court imposed a sentence that includes 75 months of incarceration on each of the three counts of sexual abuse, to run concurrently.

On appeal, defendant argues that merger of the three counts of sexual abuse was required because the record does not include evidence "that defendant's acts of touching were discrete acts—i.e. , [that] all of the touching of complainant's vagina occurred, followed by a meaningful pause, followed by touching of a different body part." That is, defendant asserts, merger was required because his "three acts of sexual contact constituting sexual abuse all occurred in the same location, without interruption and without a proven pause in [his] aggression."

In response, the state acknowledges that the question is "close," but it argues that the victim's description of what had happened was sufficient to support the trial court's determination that "there was a sufficient pause between the three acts of sexual contact" so that merger was not required. In particular, the state emphasizes that the sexual contact lasted for more than an hour, leading the victim to wake up at various times, and how, "after [the victim] was fully awake she would turn away from defendant but he would pull her back next to him and then begin to touch a different body part." The state contends that those "different acts of turning away were significant in that they stopped the touching and implicitly communicated to defendant the victim's wish he not do so again, and they provided him an opportunity to do so."

Fundamentally, both parties' arguments are based on ORS 161.067(3), which provides, in part:

"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 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

...