State v. Bradley

                                        374

    Argued and submitted August 16, 2019; convictions on Counts 12 and 13
   reversed and remanded for entry of a judgment of conviction for one count
  of first-degree sexual abuse, remanded for resentencing, otherwise affirmed
 October 28; on appellant’s petition for reconsideration filed December 9, 2020,
   and respondent’s response to petition for reconsideration filed January 11,
                reconsideration allowed by opinion March 10, 2021
                     See 

, ___ P3d ___ (2021)


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                  RONALD EDWIN BRADLEY II,
                       Defendant-Appellant.
                  Washington County Circuit Court
                       C081099CR; A166375
                                    

    Defendant appeals a judgment of conviction for two counts of first-degree
sexual abuse and one count of first-degree sodomy. Defendant argues that the
trial court erred in failing to merge the guilty verdicts for the two counts of first-degree sexual abuse into a single conviction because there was not a “sufficient
pause,” ORS 161.067(3), between those two acts. Held: The trial court erred in
entering multiple convictions where the state failed to prove a significant intervening event between either the first or second acts of sexual abuse, and the
record shows that there was no temporal break or pause in defendant’s aggression between the two acts of sexual abuse such that one crime ended before
another began.
    Convictions on Counts 12 and 13 reversed and remanded for entry of a judgment of conviction for one count of first-degree sexual abuse; remanded for resentencing; otherwise affirmed.



    D. Charles Bailey, Jr., Judge.
   Meredith Allen, Deputy Public Defender, argued the
cause for appellant. Also on the brief was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Jonathan N. Schildt, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Ortega, Presiding Judge, and Shorr, Judge, and
James, Judge.
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   ORTEGA, P. J.
   Convictions on Counts 12 and 13 reversed and remanded
for entry of a judgment of conviction for one count of first-degree sexual abuse; remanded for resentencing; otherwise
affirmed.
376                                          State v. Bradley

        ORTEGA, P. J.
         This is the third time this case is before us. A jury
convicted defendant of nine counts of sexual abuse in the
first degree (Counts 1-7, 12, and 13), two counts of unlawful sexual penetration in the first degree (Counts 10 and
11), and one count of sodomy in the first degree (Count 14).
Following a successful appeal, we reversed defendant’s convictions and remanded for a new trial on Counts 1 to 7,
10, and 11, State v. Bradley, 

, 

(2012) (Bradley I), and we remanded for resentencing on the
affirmed counts (Counts 12-14). Defendant was resentenced
but successfully challenged the resentencing judgment, and
we again reversed and remanded for a new resentencing on
Counts 12 to 14, State v. Bradley, 

, 

 (2016) (Bradley II), rev den, 

 (2017). Defendant
was again resentenced on remand.
         Defendant now appeals that resentencing judgment, raising three assignments of error. We reject defendant’s first assignment of error without written discussion.
As to his second assignment of error, we agree with defendant that the trial court erred in failing to merge the guilty
verdicts on Counts 12 and 13, which obviates the need to
reach his third assignment of error challenging the imposition of consecutive sentences on those counts.
         The relevant facts are as follows. Defendant dated
B, who is the aunt of the victim, Z. Defendant and B lived
in B’s mother’s converted garage for a few years, and Z was
a frequent visitor. One day when Z was four or five years
old, defendant sexually abused her. At trial, Z testified that
she and defendant were sitting on the floor in the converted
garage either watching TV or playing video games, and
defendant told Z to “come over towards him.” While keeping his pants on, defendant took his penis out of his pants
and told Z to touch it. Defendant showed Z how to “grab[ ]”
his penis with her hand. Defendant then told her to put her
mouth on his penis, and she did. While they were still sitting
on the floor in the same location, defendant then touched her
vagina with his hands under her clothes. Z testified that
her pants were pulled down but did not come completely
off, although she could not recall whether she or defendant
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pulled her pants down. The sexual abuse stopped when Z’s
sister, R, walked in the door to say hello. R left after a few
minutes, and defendant told Z not to tell anybody what had
happened.
         Addressing the duration of the incident, Z testified
to the following:
    “[Defense Counsel]: And this event is a very short event,
    right?
    “[Z]:   Yes.
    “[Defense Counsel]: It didn’t last very long, correct?
    “[Z]:   No.
    “[Defense Counsel]: You’re saying that … this event
    happened and that … it was interrupted at some point
    [when your sister came into the room]. Is that right?
    “[Z]:   Yes.”
         Based on the sexual contact1 of defendant instructing the victim to touch his penis and defendant touching the
victim’s vagina, defendant was charged with two counts of
first-degree sexual abuse, ORS 163.4272 —Count 12 (touching of the victim’s vaginal area) and Count 13 (causing
the victim to touch defendant’s penis). Defendant was also
charged with one count of first-degree sodomy (Count 14),
ORS 163.405 (deviate sexual intercourse).3
        During sentencing, defendant argued that the
guilty verdicts for Counts 12 and 13 should merge into a
    1
      For purposes of first-degree sexual abuse, “sexual contact” is defined as
the “touching of the sexual or other intimate parts of a person or causing such
person to touch the sexual or other intimate parts of the actor for the purpose of
arousing or gratifying the sexual desire of either party.” ORS 163.305(6) (2007),
amended by Or Laws 2009, ch 770, § 1; Or Laws 2017, ch 318, § 2; Or Laws 2017,
ch 634, § 17.
    2
      As pertinent here, first-degree sexual abuse includes subjecting a person
under 14 years old to sexual contact. ORS 163.427(1)(a)(A) (2007). First-degree
sexual abuse is a Class B felony. ORS 163.427(2) (2007).
    3
      As pertinent here, first-degree sodomy includes engaging in, or causing another to engage in, “deviate sexual intercourse” with a person under 12
years of age. ORS 163.405(1)(b) (2007), amended by Or Laws 2017, ch 318, § 5;
ORS 163.305(1) (2007) (defining “deviate sexual intercourse” as “sexual conduct
between persons consisting of contact between the sex organs of one person and
the mouth or anus of another”). First-degree sodomy is a Class A felony. ORS
163.405(2) (2007).
378                                                         State v. Bradley

single conviction for first-degree sexual abuse under ORS
161.067(3). During the discussion on whether those counts
should merge, the court agreed with defendant that both
charges arose from the same statute, but it noted as significant that each charge in the indictment contained different
language—one count related to the touching of the penis
and the other the touching of the vagina. The court ultimately denied the motion and entered separate convictions
for each count, stating,
       “In regards to the merge[r] issue, because I think we
    need to start there before the Court then imposes the
    next sentence. Though I appreciate the arguments made
    in regard to … Counts 12 and 13, whether they should
    merge, there is clearly different language in the charg[ing]
    instrument and testimony to support behavior for which a
    consecutive sentence can be imposed, because it was not
    merely an incidental violation of a separate statutory provision in the course of a commission of a more serious crime,
    but rather was an indication of defendant’s willingness to
    commit more than one criminal offense.
       “Here, it was clear that there was progression being
    used by the defendant to get the defendant to ultimately
    perform the sodomy that was performed and cut short as
    the result of somebody else coming in through a door. …
      “Therefore, in regards to Counts 12 and [13], merger
    would not be legally appropriate.” 4
         On appeal, defendant argues that the trial court
erred in concluding that Counts 12 and 13 do not merge.
First, defendant contends that the indictment’s reference
to different body parts does not prevent merger. Second,
    4
      In articulating its merger ruling, the court relied exclusively on language
from the consecutive sentencing statute. See ORS 137.123(5)(a) (stating that a
court has discretion to impose consecutive terms of imprisonment on convictions
arising out of continuous and uninterrupted conduct if the court finds that the
criminal offense “was not merely an incidental violation of a separate statutory
provision in the course of the commission of a more serious crime but rather
was an indication of defendant’s willingness to commit more than one criminal
offense”). Therefore, from the record, it appears that the court applied the incorrect legal standard to its merger analysis. However, because the parties do not
raise the issue, and we ultimately conclude that the court erred even assuming
correct application of the legal standard, we assume for the sake of argument
that the court understood that the merger issue was governed by ORS 161.067(3)
rather than ORS 137.123(5)(a).
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defendant argues that the verdicts should merge because
there was not a “sufficient pause,” ORS 161.067(3), between
defendant’s commission of the two counts of sexual abuse.
Defendant acknowledges that, interposed between the conduct underlying the sexual abuse counts, defendant committed a different crime—first-degree sodomy. However, defendant contends that that conduct does not create a sufficient
pause for purposes of merger because the three offenses
were committed continuously and without an intervening
event between each instance of sexual touching.
         The state does not defend the trial court’s conclusion that the indictment’s reference to different body parts
prevents merger. The state argues only that the defendant’s
commission of first-degree sodomy in between the two incidents of sexual abuse establishes a pause sufficient to allow
defendant the opportunity to renounce his criminal intent,
which supports the trial court’s conclusion that the first-degree sexual abuse counts do not merge.
         We review the trial court’s ruling on whether to
merge the guilty verdicts for legal error and are bound by
the trial court’s factual findings if there is constitutionally
sufficient evidence in the record to support them. State v.
Reed, 

, 

, rev den, 

(2013).
         When multiple charges arise from the same criminal episode, “criminal conduct that violates only one statutory provision will yield only one conviction unless the
so-called ‘antimerger’ statute, ORS 161.067, operates so as
to permit the entry of multiple convictions.” State v. Reeves,

, 

, rev den, 

(2012). As relevant here, ORS 161.067(3) provides:
   “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.”
380                                                         State v. Bradley

        Thus, under ORS 161.067(3), a court is permitted to
enter multiple convictions for criminal conduct involving the
same conduct or criminal episode, same victim, and same
statutory provision only if the violations are separated from
one another by a “sufficient pause” in the defendant’s criminal conduct.
         We begin by briefly addressing whether defendant’s
contact with different body parts in the commission of the
sexual abuse prevents merger. As previously noted, the
state does not defend that legal basis of the court’s ruling,
a concession that is well-taken. To the extent the court’s
reasoning was that defendant’s contact with different body
parts did not constitute “the same conduct” within the
meaning of ORS 161.067(3), the court erred. Subsequent to
the trial court’s ruling, in State v. Nelson, 

, 

 (2016), we addressed and rejected the
argument that, “because the jury found defendant guilty of
three counts of sexual abuse each based on ‘contact with
a different body part,’ the three counts do not involve the
‘same conduct’ ” under ORS 161.067(3). For the same reasons
we articulated in Nelson, ORS 161.067(3) does not prevent
merger of multiple counts of sexual abuse convictions that
involve contact with different body parts, and the trial court
erred in concluding otherwise.5
         We turn next to whether the evidence supports the
implicit finding that there was a “sufficient pause” between
defendant’s commission of the sexual abuse counts. A “sufficient pause” within the meaning of ORS 161.067(3) occurs
when there is “a temporary or brief cessation of a defendant’s criminal conduct that occurs between repeated violations and is so marked in scope or quality that it affords

     5
       The court did not explain its legal reasoning for concluding that ORS
161.067 prevents merger when the conduct underlying first-degree sexual abuse
involves different body parts. However, the record reveals that the court reviewed
the parties’ prior merger arguments from the first resentencing and the briefs
filed from the appeal of that prior resentencing judgment. Because the state
made the same argument in its brief related to the appeal of the prior resentencing judgment that was raised and rejected in Nelson—that defendant’s commission of first-degree sexual abuse involving different body parts did not constitute
“the same conduct” within the meaning of ORS 161.067(3)—it appears that reasoning formed the legal basis underlying the court’s ruling. See Nelson, 

.
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a defendant the opportunity to renounce his or her criminal intent.” State v. Huffman, 

, 

 (2010). Before separate convictions can be imposed,
“one crime must end before another begins.” 

 (quoting State v. Barnum, 

, 

 (2002),
overruled on other grounds by State v. White, 

,

 (2006)). “Thus, to support the entry of multiple
convictions for the same offense under ORS 161.067(3), one
crime must end before another begins and each crime must
be separated from the others by a sufficient pause in the
defendant’s criminal conduct to afford him an opportunity
to renounce his criminal intent.” State v. West-Howell, 

, 

 (2016), rev den, 

 (2017) (emphasis in original).
          We agree with defendant that the evidence is insufficient to support a finding that there was a sufficient pause
between his commission of the two sexual abuse acts to support entry of separate convictions. Z testified that the entire
sexual episode occurred over a short period of time on the
floor of the garage, that defendant showed her how to hold
his penis and then instructed her to put her mouth on it,
and then touched her vagina. Z testified that the incident
was interrupted when her sister knocked on the door after
the final act of sexual abuse occurred. Thus, no reasonable
factfinder could conclude that there was any temporal break
or pause in defendant’s aggression between the two acts
of sexual abuse such that one crime ended before another
began. See State v. Glazier, 

, 

 (2012), rev den, 

 (2013) (concluding that
the trial court erred in failing to merge the verdicts where
“there was no evidence of a temporal break between defendant’s assaultive acts such that a trier of fact could find that
one assault had ended before another began”); Nelson, 

 (looking to cases involving merger
of assault verdicts for guidance and concluding that the
three sexual abuse counts based on a sequential touching of
the victim, which included the defendant touching the victim’s breast, forcing her to touch his penis, and touching her
vagina, merged into a single conviction of first-degree sexual abuse under ORS 161.067(3) where “the entire violent
episode … occurred in the confined space of the bathroom,
382                                          State v. Bradley

without interruption by any significant event, and without
a pause in the defendant’s aggression”) (citation and internal quotation marks omitted)); State v. Dugan, 

, 

 (2016) (concluding that two counts of
sexual abuse in the first degree based on the touching of
two different body parts merged because the “record demonstrates only that defendant’s acts occurred in sequence over
a brief period of time, between 10 and 15 minutes, in a confined space, the victim’s entryway, without interruption by
any significant event, and without a pause in defendant’s
aggression” (internal quotation marks omitted)).
         The state does not argue that either the location or
duration of the incident justifies entry of separate convictions. Rather, the state argues only that something of significance occurred between the two acts of sexual abuse, interrupting defendant’s conduct and creating a pause sufficient
for him to renounce his criminal intent. See State v. King,

, 

 (2014) (concluding that
“something of significance” occurred between the first and
second assaults preventing merger where the victim had
subdued the defendant, but the defendant “re-entered the
fray, hitting the victim” again after the defendant’s friend
“freed defendant from the victim’s grasp”). Specifically,
the state argues that, between defendant’s commission of
the first act of sexual abuse (causing victim to touch his
penis) and the second act of sexual abuse (touching of victim’s vagina), defendant instructed Z to put her mouth on
his penis. Therefore, according to the state, defendant had
stopped committing the first act of sex abuse, “formed the
intent to commit the distinct, more serious criminal act of
sodomy,” and then ceased committing the sodomy to commit
a different act of sexual abuse.
         We disagree with the state that the intervening
sodomy, on the facts of this case, was a significant intervening event creating a pause sufficient to allow defendant the
opportunity to renounce his criminal intent. Although the
state argues that at the time defendant caused the sodomy,
“the first act of sexual abuse … had stopped,” the record
does not support such a finding. Here, Z testified that defendant showed her how to “grab[ ]” his penis with her hand and
then told her to put her mouth on it. There was no evidence
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of a break between the sexual contact underlying the sexual
abuse and the initiation of the sodomy. On the contrary, the
evidence showed that the first act of sexual contact that initiated the abuse—defendant causing the victim to touch his
penis—assisted defendant in the commission of the sodomy.
Indeed, the court found that “it was clear that there was progression being used by the defendant to get the defendant to
ultimately perform the sodomy.” See Ball v. Gladden, 

, P2d 621 (1968) (“What actually transpired is
a question of fact for the trial court or jury.”); Reed, 

 (“We are bound by the findings of the trier of fact,
provided that the findings are supported by constitutionally
sufficient evidence.”). In other words, the sexual abuse was
sufficiently intertwined with defendant’s commission of the
sodomy such that, once defendant initiated the sodomy, the
sexual abuse was still ongoing.
         We acknowledge that, when evaluating the relationship between defendant’s commission of the sodomy and
the second act of sexual contact—defendant’s touching of
the victim’s vagina—the sufficiency of the pause issue is a
closer question. However, we nonetheless conclude that the
state failed to adduce sufficient evidence to establish any
temporal break or other significant event between defendant’s commission of the sodomy and the final act of sexual
touching to allow a trier of fact to conclude that there was
a sufficient pause between the two sexual abuse counts. See
Nelson, 

 (“[T]he state, as the party asserting that defendant’s conduct … is ‘separately punishable’
for purposes of ORS 161.067(3), bears the burden of adducing legally sufficient evidence of the requisite sufficient
pause.” (Internal quotation marks and citation omitted.)). Z
testified that, while she and defendant were still sitting on
the floor in the same location as where the first act of sexual
abuse and sodomy took place, the victim’s pants were partially pulled down and defendant touched her vagina. Z also
testified that the entire episode of abuse was short and did
not last long. The state failed to present any evidence that
defendant had paused between his first act of sexual abuse
or the sodomy and when defendant initiated the second sexual contact by touching the victim’s vagina. On this record,
a trier of fact could only speculate that those crimes had
384                                             State v. Bradley

ceased, or that there was some other significant event that
occurred, at the time defendant initiated the final act of sexual contact to allow defendant the opportunity to renounce
his criminal intent. See Nelson, 

 (concluding merger is required where there “is nothing in the record
that would allow a nonspeculative inference that each crime
was separated from the others by a sufficient pause in defendant’s conduct to afford him an opportunity to renounce his
criminal intent”); West-Howell, 

 (stating that “to support the entry of multiple convictions for the
same offense under ORS 161.067(3), one crime must end
before another begins”). As in Nelson, “[t]his is a case where
the record demonstrates only that defendant’s acts occurred
in sequence over a brief period of time.” Nelson, 

. Although we might reach another conclusion on a different record, the state failed to meet its burden in this case
to establish that defendant’s instruction to the victim to
sodomize him was a significant intervening event between
either the first or second acts of sexual abuse that created a
pause sufficient to allow defendant an opportunity renounce
his intent between the two acts of sexual abuse.
         The state argues that our decision in West-Howell
compels a different conclusion. West-Howell addressed, for
the first time, “the sufficiency of a pause between sexual
crimes, during which the defendant engages in other criminal conduct.” 282 Or App at 399. The defendant was convicted of, among other crimes, two counts of first-degree
sodomy. In between the commission of the two sodomies, the
defendant strangled and attempted to rape the victim. We
summarized the evidence as establishing that
   “the first act of sodomy took place on the floor and lasted
   for five to 10 minutes. At the conclusion of that act, defendant moved the victim onto the bed, strangled her until
   she lost consciousness and, after she came to, attempted to
   rape her. The defendant then moved the victim back onto
   the floor before sodomizing her again.”
Id. at 401.
        We first rejected the defendant’s argument that,
“because there was no cessation in defendant’s overall criminal conduct, the pause between the two acts of sodomy was
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 (2020)                             385

insufficient in scope or quality to afford defendant the opportunity to renounce his criminal intent.” Id. at 400 (emphasis in original). The operative question, we explained, “is
whether the pause between the two acts of sodomy was sufficient to allow defendant to renounce his intent to commit
sodomy,” not “whether there existed a pause sufficient to
renounce any criminal intent.” Id. at 400-01 (emphasis in
original). Thus, because the defendant’s acts of sodomy were
separated by “assaultive conduct” of a “qualitatively different nature,” those acts did not “render his conduct ‘continuous and uninterrupted’ so as to require merger.” Id. And,
because the defendant “could have … been satisfied with
physical violence” but the defendant “[i]nstead … formed
the intent to sodomize [the victim] again,” the court held
that there was a sufficient pause supporting entry of multiple sodomy convictions. Id. at 401.
         Here, the state relies on West-Howell to support
its argument that the intervening sodomy in this case was
“qualitatively” different from the sexual abuse. According
to the state, because first-degree sodomy is a more serious
offense than first-degree sexual abuse, defendant escalated his conduct by making the victim perform oral sex,
which was “qualitatively different [conduct] from what came
before.” Thus, the state contends, defendant had an opportunity to renounce his criminal intent at the time he began
the sodomy.
         West-Howell is distinguishable and does not speak
to the precise issue in this case. The intervening conduct
between the two separate sodomy convictions in West-Howell included strangulation of a nonsexual nature that
caused the victim to lose consciousness, an attempted rape
that the victim fought off before the second sodomy began,
and movement of the victim from the floor to the bed. For
purposes of merger, the question is whether the pause in
defendant’s criminal conduct was “so marked in scope
or quality that it affords a defendant the opportunity to
renounce his or her criminal intent.” Huffman, 

 (emphasis added). Where, as here, the entire episode
involved a series of continuous sexual offenses without any
break in between each offense, and one offense—defendant
instructing Z to touch his penis—was used to initiate the
386                                                       State v. Bradley

next offense—defendant telling Z to put her mouth on his
penis—the transition between those sexual offenses was
not so marked in scope or quality to create a pause sufficient to allow defendant an opportunity to renounce his
criminal intent. Unlike West-Howell, there was no temporal
break, pause in defendant’s commission of the sexual abuse,
or other significant event in defendant’s sexual aggression
sufficient to create a pause that would have allowed defendant the opportunity to make a new, independent decision
whether to commit a new act of sexual abuse. Thus, West-Howell is not controlling.
         We do not hold that simply because the intervening
conduct in this case falls within the same broad category
of the crimes sought to be merged (e.g., “sexual conduct”),
those crimes must merge under ORS 161.067(3). Rather, we
conclude that when, as here, the intervening conduct was
intertwined with the conduct underlying the crimes sought
to be merged and assisted defendant in achieving his overall
criminal objective of sexually abusing the victim, that the
intervening conduct was of a similar nature is relevant to
the sufficiency of the pause issue and, thus—with no other
evidence that one crime ended before the other began—
merger is precluded. Even assuming the sodomy was of a
more serious nature than the sexual abuse, that fact alone
does not, as a matter of law, create a pause sufficient for
defendant to have renounced his criminal intent within the
meaning of ORS 161.067(3). Thus, the trial court erred in
failing to merge defendant’s sexual abuse guilty verdicts.6
         Convictions on Counts 12 and 13 reversed and
remanded for entry of a judgment of conviction for one count
of first-degree sexual abuse; remanded for resentencing;
otherwise affirmed.




     6
       Our conclusion obviates the need to address defendant’s third assignment
of error related to the imposition of consecutive sentences on Counts 12 and 13.