State v. Paye

310 Or.App. 408

486 P.3d 808

STATE of Oregon, Plaintiff-Respondent,

v.Marcus Loinu PAYE, aka Loinu Mark Paye, aka Marcus Paye, aka Mark Paye, aka Mark Loinu Paye, Defendant-Appellant.

A162421

Court of Appeals of Oregon.

Argued and submitted October 19, 2018.

April 7, 2021

Anne Fujita Munsey, Deputy Public Defender, argued the cause for appellant. Also on the briefs was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services.

Doug M. Petrina, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeHoog, Presiding Judge, and Lagesen, Judge, and Aoyagi, Judge.^*

LAGESEN, J.

Defendant appeals a judgment of conviction for two counts of compelling prostitution in violation of ORS 167.017 and seven counts of promoting prostitution in violation of ORS 167.012. He raises numerous assignments of error, including to the trial court's acceptance of nonunanimous verdicts on the two counts of compelling prostitution and two of the counts of promoting prostitution (Counts 1, 4, 5, and 6). As required by the Sixth and Fourteenth Amendments to the United States Constitution under Ramos v. Louisiana , 590 U.S. ––––, 140 S. Ct. 1390, 206 L. Ed. 2d 583 (2020), and State v. Ulery , 366 Or. 500, 464 P.3d 1123 (2020), we reverse the convictions on which the jury did not unanimously agree. We conclude further that the guilty verdicts on Counts 2, 3, 14, and 15 each merge with the guilty verdict on Count 16 and remand for further proceedings consistent with that conclusion. We otherwise reject or do not reach the remaining assignments of error.

I. FACTUAL AND PROCEDURAL BACKGROUND

Defendant ran a prostitution business. He promoted the business by advertising women on Backpage.com. He also encouraged and sometimes compelled women to have sex for money; they would then give defendant the money.

In July 2015, S met defendant at a MAX station the day before her eighteenth birthday.

She was with defendant for about a week. At some point during that time, defendant threatened to kill her and her family if she did not make money for him by having sex with others. So S did exactly that. Defendant took her to 82nd Avenue in Portland, where she had sex for money with two different men and then gave the money to defendant. Afterward, they returned to defendant's residence, from which S escaped that night while defendant was sleeping.

About three months later, having obtained a fair amount of information indicating that defendant was involved in a prostitution business, officers executed a search warrant on defendant's residence, seeking evidence of defendant's involvement in prostitution-related activities. They found N sleeping in defendant's home. The search pursuant to the warrant, which authorized the seizure of computers and cell phones from defendant (among other things) and the search of those devices for evidence of defendant's prostitution-related activities, ultimately resulted in the discovery of a large amount of evidence (both directly and derivatively) that defendant had been engaged in promoting prostitution. Officers discovered that defendant had been advertising N on Backpage.com around the time they executed the warrant. They also discovered that, at the end of 2014, defendant had been advertising a different woman, H, on Backpage.com, along with other evidence of defendant's general involvement in the prostitution business.

As a result of those discoveries, the state charged defendant with nine offenses related to S, N, and H.¹ Regarding S, the state charged defendant with two counts of compelling prostitution (Counts 1 and 4) and four counts of promoting prostitution (Counts 2, 3, 5, and 6). Regarding N, the state charged defendant with one count of promoting prostitution (Count 15). Regarding H, the state charged defendant with two counts of promoting prostitution (Counts 13 and 14). The state also charged defendant with one count of promoting prostitution that did not allege that defendant's promoting activities involved a particular individual (Count 16).

Before trial, defendant moved to suppress the evidence discovered pursuant to the search warrant on the ground that the warrant was overbroad and did not comport with the particularity requirement of Article I, section 9, of the Oregon Constitution. The trial court denied the motion.

Defendant exercised his right to a jury trial and, following trial, the jury found defendant guilty on each of the counts mentioned above. Its verdicts on Counts 1, 4, 5, and 6 were not unanimous; its verdicts on the remaining counts were. Defendant appealed, raising 10 assignments of error. In his first assignment of error, defendant challenges the denial of his motion to suppress. In his second and third assignments of error, he contends that the trial court erred by not merging (1) the guilty verdicts for promoting prostitution on Counts 2 and 3; and (2) the guilty verdicts for promoting prostitution on Counts 5 and 6. In his fourth assignment of error, he contends that the court erred by not merging the guilty verdicts on all counts of promoting prostitution (Counts 2, 3, 5, 6, 14, 15, and 16). In his fifth assignment of error, defendant contends that the court erred by declining to merge the guilty verdicts for compelling prostitution on Counts 1 and 4. In his sixth assignment of error, defendant contends that the court erred in categorizing defendant in grid block 8-B on Counts 4 through 6, and in his seventh assignment of error he contends that the court erred in categorizing him in grid block 8-A on Counts 14 through 16. In his eighth assignment of error, he contends that the court plainly erred in imposing a $3,000 compensatory fine. In his ninth assignment of error, he contends that the court erred in instructing the jury that it could return nonunanimous verdicts and that that error requires the reversal of all convictions, including those on which the jury's verdict was unanimous. Finally, in his tenth assignment of error, defendant asserts that the trial court erred in accepting nonunanimous verdicts on Counts 1, 4, 5, and 6.

II. ANALYSIS

As we will explain, defendant is entitled to relief on his tenth assignment of error and the reversal of his convictions on Counts 1, 4, 5, and 6. Defendant is not entitled to relief from his convictions on the other counts, but, on this record, the guilty verdicts on Counts 2, 3, 14, and 15 each merge with the guilty verdict on Count 16. Those conclusions obviate the need to address defendant's remaining assignments of error, which present issues that may not recur on remand.

A. Nonunanimous Verdicts

We start with defendant's ninth and tenth assignments of error because our resolution of them has the potential to affect the need to address some of defendant's other assignments of error. Those assignments assert, respectively, that the trial court plainly erred by instructing the jury it could convict defendant by a 10-2 verdict and that the trial court plainly erred by accepting the nonunanimous verdicts on Counts 1, 4, 5, and 6. As the state correctly concedes, under Ramos , 590 U.S. at ––––, 140 S. Ct. at 1401-02, and Ulery , 366 Or. at 504, 464 P.3d 1123, defendant is entitled to a reversal of his convictions on Counts 1, 4, 5, and 6, because those convictions were based on nonunanimous verdicts. Defendant is not, however, entitled to reversal of the other convictions that were based on unanimous verdicts. See State v. Chorney-Phillips , 367 Or. 355, 358-59, 478 P.3d 504 (2020) ; State v. Ciraulo , 367 Or. 350, 353-54, 478 P.3d 502 (2020).

B. Motion to Suppress

In his first assignment of error, defendant challenges the denial of his motion to suppress the evidence obtained from his electronic devices. He contends that the warrant was impermissibly overbroad, in violation of Article I, section 9. Specifically, relying on the analysis in our decision in State v. Mansor , 279 Or. App. 778, 381 P.3d 930 (2016) ( Mansor I ), aff'd , 363 Or. 185, 421 P.3d 323 (2018) ( Mansor II ), defendant argues that the warrant was insufficient to comport with the constitution because (1) it lacked temporal limitations; (2) in defendant's view, it was too broad in terms of the items it authorized police to search; and (3) it did not restrict the locations in which police could look for evidence of the crimes that the warrant authorized them to look for.

Defendant's assertion that the warrant was overbroad presents a question of law that we review for legal error. State v. Savath , 298 Or. App. 495, 499, 447 P.3d 1, rev. den. , 365 Or. 722, 453 P.3d 548 (2019). We consider that question in light of the Supreme Court's decision in Mansor II . Although the Supreme Court affirmed our decision in that case, its "analysis differ[ed] in some respects from that of" our court in some fairly significant ways. Mansor II , 363 Or. at 187, 421 P.3d 323.

In Mansor II , the Supreme Court set forth the considerations for assessing whether a warrant to search for digital evidence on a device such as a computer or a cell phone comports with the particularity requirement of Article I, section 9. 363 Or. at 211, 421 P.3d 323. The court explained that, to satisfy that requirement, a warrant must identify any items to be searched for and seized with sufficient specificity to allow officers to find them with a reasonable amount of certainty, and also must not authorize a search that is overbroad, given the probable cause that justifies the search. Id. at 212, 421 P.3d 323. After considering the unique characteristics of digital evidence that make searches of it and for it very different from searches of and for physical evidence, the Supreme Court concluded as follows:

"The warrant to search a computer must be based on affidavits that establish probable cause to believe that the computer contains information relevant to the criminal

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