State v. Ortiz-Rico

303 Or.App. 78

462 P.3d 741

STATE of Oregon, Plaintiff-Respondent,

v.Jose Omar ORTIZ-RICO, Defendant-Appellant.

A163380

Court of Appeals of Oregon.

Submitted July 30, 2018.

March 18, 2020

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rolf C. Moan, Assistant Attorney General, filed the brief for respondent.

Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.

DEHOOG, P. J.

Defendant appeals a judgment of conviction for, among other offenses, four counts of first-degree rape (Counts 1 through 4), ORS 163.375, and four counts of first-degree sexual abuse (Counts 5 through 8), ORS 163.427.¹ We write to address defendant’s second through seventh assignments of error, in which he makes a combined argument that the trial court erred in failing to merge the guilty verdicts in Counts 1 through 4 into a single conviction for first-degree rape and in failing to merge Counts 5 through 8 into a single conviction for first-degree sexual abuse.² Defendant alternatively argues that the court erred in failing to merge Count 1 with Count 2, Count 3 with Count 4, Count 5 with Count 6, and Count 7 with Count 8, resulting in only two rape and two sexual-abuse convictions. Defendant contends that merger is required under ORS 161.067(3) because the underlying criminal acts perpetrated against the victim, K, were not separated by sufficient pauses in his conduct. For the reasons that follow, we conclude that the trial court did not err in declining to merge Counts 1 and 3. In light of our conclusion regarding Counts 1 and 3, it also was not error for the trial court to decline to merge Counts 5 and 7, as the conduct that constituted the rape charges also constituted the sexual-abuse charges. Furthermore, defendant’s argument that the trial court should have entered only single convictions for rape and sexual abuse also necessarily fails. However, as we further explain, we are unable to determine whether merger was appropriate in any way with regard to Counts 2, 4, 6, and 8. Therefore, we vacate defendant’s convictions as to those counts, remand for further consideration of merger, and remand for resentencing. We otherwise affirm.³

Because defendant was found guilty, 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." State v. Dearmitt , 299 Or. App. 22, 24, 448 P.3d 1163 (2019).

Defendant and K were former high school friends who had not seen each other for nearly 10 years when defendant contacted K through Facebook. The two decided to meet in person and, in fact, met for about an hour at K’s house. Defendant told K that he might have some upcoming work opportunities for her. About a week later, defendant called K and said that he wanted to talk to her about one of those opportunities. K agreed to meet defendant at a store near her house.

When K arrived at the store, she found defendant seated in his car and got in with him. Defendant told K that he needed to drop some things off at his own house, which K thought was nearby, and drove off with K in his car. When defendant drove further than K had anticipated, K became uncomfortable and told defendant that she needed to go home. Defendant ignored K and continued driving.

When they arrived at defendant’s house, K refused his request to go inside with him, which appeared to anger defendant. About 15 minutes later, defendant returned, got back in the car, and sped off with K. K tried to call a friend on her cell phone, but defendant snatched the phone from her hands, tore it apart, and tossed the pieces into the back seat.

Defendant eventually pulled his car off the road and drove into a secluded area, where K attempted to get out. Defendant responded by hitting K in the face, pulling her car door closed, and repeatedly hitting her when she tried to fight back. K screamed and defendant reacted by covering her mouth with his hands, putting his bodyweight on her, and telling her to "shut up." Defendant then forcibly raped K as he held her down.

It was light outside when that rape began. Defendant continued to rape K in the front seat of his car over a course of hours, but he had trouble maintaining an erection, and, according to K, he did not ejaculate.⁴ By the time defendant stopped, it was dark.

K recalled defendant next moving some tools from the back seat to the rear floorboard and then climbing into the back seat. At that time, K again attempted to escape through the passenger door, but defendant dragged her into the back seat with him, moving some more tools to the front to make room. K told defendant that she was too swollen for him to penetrate her and that it hurt too much to continue, but he raped her again anyway. That second rape continued for about 30 minutes, after which defendant stopped long enough for K to fall asleep, which she did, lying either on her side or her stomach.

When K awoke, defendant was attempting to rape her a third time, this time from behind. Again defendant was unable to maintain an erection, and again K pleaded with him to stop because he was hurting her too much. Despite renewed efforts by K to fight defendant off, he ultimately succeeded in penetrating her again.

After raping K that third time, defendant tried forcing her to perform oral sex on him by pushing her head down and standing up slightly. K cried and said that she did not want to, asking defendant how he could do this to her when they had known each other for so long. Nonetheless, defendant persisted and eventually succeeded in forcing K to perform oral sex. After he did so, defendant raped K a fourth time, by which time it had begun to get light. To K’s knowledge, defendant never ejaculated.

As a result of defendant’s conduct against K, he was charged with, among other things, the four counts of rape and four counts of sexual abuse at issue in this appeal. Defendant waived his right to a jury and, following a bench trial in which K testified to the foregoing events, the trial court found defendant guilty on all counts. At sentencing, defendant argued that the court should merge the guilty verdicts in Counts 1 through 4 into a single conviction for first-degree rape and the guilty verdicts in Counts 5 through 8 into a single conviction for first-degree sexual abuse. The trial court rejected that request, stating:

"What I am going to do to make sure that this survives any sort of appeal issues, that I find—because specifically that we are talking about an episode that happened for over eight hours, and because we are talking about [K] being moved from the front seat and the back seat—to me, that also shows an interruption of criminal behavior—that this is appropriate for some sort of consecutive sentence.

"It is obvious to this Court that this criminal offense for which the consecutive sentence is contemplated, was not merely an incidental violation of separate statutory provision in the course of the commission of a more serious crime, but rather an indication of the defendant’s willingness to commit more than one criminal offense.

"And—because of the length of time, and the fact that the victim was moved from one area of the car, this caused and created a risk of causing greater quantitatively different loss, injury or harm to the victim."⁵

The court then sentenced defendant, entering separate convictions on all counts and running the sentence for Count 3 consecutive to the sentence imposed on Count 2.

"Count 3 is Rape in the First Degree, 100 months Measure 11 time. That will be consecutive to Count 1 and Count 2. * * * Again, for the record, I am using Count 3 to identify as the count that shows the rape in the back seat."⁶

Defendant asked the trial court whether it was specifically finding that Count 3 had been a separate act, and the court affirmed that it was. Defendant next asked whether the court was finding that Counts 1 and 2 had been the same act. The court replied that it was "not making that finding." When defendant asked the court to clarify that it was "not making any ruling as far as that it was a separate act or that it was from the same act," the court responded, "Correct." Defendant then objected and argued that, in the absence of such a finding, Count 2 should merge with Count 1. Defendant further argued that Count 4 should merge with Count 3, and that the court should apply the same analysis to the corresponding sexual-abuse charges. The court noted defendant’s objection but declined to do so.

On appeal, defendant renews his merger argument. Specifically, citing ORS 161.067(3), defendant argues that the guilty verdicts from Counts 1 through 4 should all merge into a single conviction for first-degree rape and that the guilty verdicts from Counts 5 through 8 should all merge into a single conviction for first-degree sexual abuse. That, defendant argues, is required because the acts underlying his multiple violations of the same statutes were not separated by a "sufficient pause" in his criminal conduct to warrant separate convictions. In the alternative, defendant argues that, even if his act of moving K from the front seat to the back seat of the car created a sufficient pause for purposes of ORS 161.067(3), the remaining rape counts arising from his conduct in each location should merge, as should the related sexual-abuse charges.⁷

The state responds that the record justified the trial court’s entry of four convictions for first-degree rape because (1) defendant’s multiple acts of rape occurred over the course of eight hours; (2) "each rape was complete before the next began"; and (3) each rape "was separated from the next rape by (a) a significant temporal break; (b) conduct by defendant that constituted a crime other...