Convictions on Counts 2 and 3 reversed and remanded for… · Decided 2019-10-30
387
Submitted September 6; various counts reversed and remanded with
instructions; remanded for resentencing; otherwise affirmed October 30, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
TYLER STANLEY WILKERSON,
Defendant-Appellant.
Multnomah County Circuit Court
17CR55133; A169573
Eric J. Bergstrom, Judge.
Neil F. Byl, Deputy Public Defender, filed the brief for
appellant. Also on the brief was Ernest G. Lannet, Chief
Defender, Criminal Appellate Section, Office of Public
Defense Services.
Robert M. Wilsey, Assistant Attorney General, filed
the brief for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before Hadlock, Presiding Judge, and DeHoog, Judge,
and Mooney, Judge.
PER CURIAM
Convictions on Counts 2 and 3 reversed and remanded
for entry of one count of first-degree sexual abuse; convictions on Counts 4 and 5 reversed and remanded for entry
of one count of first-degree sexual abuse; convictions on
Counts 6, 7, 8 and 9 reversed and remanded for entry of
one count of first-degree sexual abuse; convictions on
Counts 11 and 12 reversed and remanded for entry of one
count of second-degree sexual abuse; convictions on Counts
13 and 14 reversed and remanded for entry of one count of
second-degree sexual abuse; convictions on Counts 15 and
16 reversed and remanded for entry of one count of second-degree sexual abuse; remanded for resentencing; otherwise
affirmed.
388 State v. Wilkerson
PER CURIAM
Defendant appeals a judgment of conviction for nine
counts of first-degree sexual abuse, ORS 163.427 (Counts
1 to 9), six counts of second-degree sexual abuse, ORS
163.425 (Counts 11 to 16), and one count of second-degree
attempted rape, ORS 161.405(2)(c) (Count 10), raising eight
assignments of error. Those convictions arise out of seven
separate criminal episodes with two different victims. In
his assignments of error, defendant contends that the trial
court plainly erred when it failed to merge certain verdicts
under ORS 161.067(3), which states, 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 intent.”
(Emphasis added.) Defendant asserts that the record does
not contain evidence of a “sufficient pause” in his conduct
during those criminal episodes in which the state alleged
that he had committed multiple acts of abuse. Specifically,
he argues that the record does not reflect a sufficient pause
between the acts underlying Counts 2 and 3; Counts 4 and
5; Counts 6 and 7; Counts 6 and 8; Counts 6 and 9; Counts
11 and 12; Counts 13 and 14; and Counts 15 and 16 to justify
separate convictions on each of those counts.
The state concedes that the record does not reflect
a sufficient pause between the acts underlying the counts
that defendant identifies in his assignments of error and
that the court plainly erred by not merging the associated
verdicts. See State v. Nelson,
(2016) (guilty verdicts for two counts of first-degree sexual
abuse and one count of third-degree sexual abuse merged
into one conviction for first-degree sexual abuse when there
was no evidence in the record to support trial court’s determination that each instance of sexual contact was separated
Cite as
300 Or App 387
(2019) 389
from other instances of sexual contact by a sufficient pause
in the defendant’s criminal conduct).
We agree with and accept the state’s concession and
conclude that it is appropriate to exercise our discretion to
correct the plain error. See State v. Camacho-Alvarez,
(2009) (exercising discretion to
correct trial court’s plain error in failing to merge verdicts
because “the state has no interest in our refusal to do so,” we
perceive no strategic or tactical reason for defendant not to
have raised the issue, and “the ends of justice are served by
convicting and sentencing defendant according to the law”).
Convictions on Counts 2 and 3 reversed and
remanded for entry of one count of first-degree sexual abuse;
convictions on Counts 4 and 5 reversed and remanded for
entry of one count of first-degree sexual abuse; convictions
on Counts 6, 7, 8 and 9 reversed and remanded for entry
of one count of first-degree sexual abuse; convictions on
Counts 11 and 12 reversed and remanded for entry of one
count of second-degree sexual abuse; convictions on Counts
13 and 14 reversed and remanded for entry of one count of
second-degree sexual abuse; convictions on Counts 15 and
16 reversed and remanded for entry of one count of second-degree sexual abuse; remanded for resentencing; otherwise
affirmed.
