State v. Lasheski

                                       140

   Submitted May 30, 2019; convictions on Counts 1, 2, and 3 reversed and
remanded for entry of judgment of conviction on one count of first-degree sexual
   abuse, remanded for resentencing, otherwise affirmed February 3, 2021


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                    JEFFREY LEE LASHESKI,
                        Defendant-Appellant.
                   Deschutes County Circuit Court
                        15FE0442; A165490
                                   

     Defendant appeals a judgment of conviction for three counts of first-degree
sexual abuse. On appeal, defendant argues that the trial court erroneously failed
to merge the three counts of sexual abuse. Merger of multiple counts of the same
crime is required when there is not “a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal
intent.” ORS 161.067(3). Held: Although the evidence demonstrated the defendant touched victim on different parts of her body, he did so over an indeterminate period of time and with no proven break in his continuing act of aggression.
See State v. Nelson, 

, 

 (2016). Any pause demonstrated in the record was not legally sufficient to avoid merger of the three counts
of first-degree sexual abuse.
    Convictions on Counts 1, 2, and 3 reversed and remanded for entry of judgment of conviction on one count of first-degree sexual abuse; remanded for resentencing; otherwise affirmed.




    Walter Randolph Miller, Jr., Judge.
   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.
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  HADLOCK, J. pro tempore.
   Convictions on Counts 1, 2, and 3 reversed and remanded
for entry of judgment of conviction on one count of first-degree sexual abuse; remanded for resentencing; otherwise
affirmed.
142                                        State v. Lasheski

        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, 

, 

 (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, 

, 

 (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.” 

 (citation and internal quotation
marks omitted). We review the trial court’s ultimate ruling
on merger for legal error. 

.
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         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
144                                                       State v. Lasheski

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

     1
       ORS 163.427(1)(a)(A) defines the crime of first-degree sexual abuse to
include the act of subjecting another person to sexual contact when that person
“is less than 14 years of age.” The term “sexual contact” is defined as “any touching of the sexual or 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).
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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
146                                                       State v. Lasheski

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 intent.”
(Emphasis added.)2 Thus, when ORS 161.067(3) applies,
criminal charges based on multiple violations of the same
statutory provision will not merge if a “sufficient pause” separates those violations.
         For purposes of ORS 161.067(3), a “pause” occurs
between two statutory violations only if the defendant’s
commission of one violation ends before the second violation
begins. Ortiz-Rico, 

. For that pause to be
deemed “sufficient,” it must have been “so marked in scope
or quality that it afford[ed] a defendant the opportunity
to renounce his or her criminal intent.” State v. Huffman,

, 

 (2010). The pause may
have been only “temporary or brief,” 

 but it must have
given the defendant an opportunity to renounce his intention to commit the particular crime that followed the pause.
State v. West-Howell, 

, 

(2016), rev den, 

 (2017). In determining whether
a “sufficient pause” occurred, a court must consider the evidence regarding the duration of any pause, what happened
during the pause, and whether the defendant’s criminal conduct was “qualitatively different” before and after the pause.

    2
      ORS 161.067 was amended after defendant engaged in the conduct that is
the subject of this appeal. However, because those amendments do not affect our
analysis, we refer to and quote the current version of the statute in this opinion.
See Ortiz-Rico, 

 n 9 (taking same approach).
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Ortiz-Rico, 303 Or at 85, 89; see also State v. Bradley, 

, 

 (2020) (discussing cases).

         Applying those principles to this case, we conclude
that no evidence in the record supports a determination
that a “sufficient pause” separated defendant’s three acts of
sexual abuse. It is important to keep in mind that each of
the three counts of sexual abuse was predicated on defendant having unlawfully touched a different sexual or other
intimate part of the victim’s body: Count 1 related to the
touching of the victim’s breasts; Count 2 related to her vaginal area; and Count 3 related to her buttocks. The question, therefore, is not whether there were any pauses during
defendant’s sexual assault of the victim. What matters for
the merger analysis is whether a “sufficient pause” separated the specific acts on which the charges are based. West-Howell, 282 Or App at 400-01; see also State v. Nelson, 

, 

 (2016) (in considering whether
counts of sexual abuse should merge, court was “limited to
examining whether there was a sufficient pause between
the acts of sexual contact that led to the guilty verdicts for
sexual abuse”; evidence of the defendant’s actions while he
committed other crimes were not material to the analysis
(emphases in original)).

         We begin by discussing the guilty verdict on Count 1,
which is supported by the victim’s testimony that defendant
touched her breasts during the episode in the tent. The victim also said that the entire abusive episode lasted more
than an hour. However, the record in this case contains
no evidence about when, during that episode, defendant
touched the victim’s breasts. Moreover, the victim did not
testify whether that touching occurred before or after—or
at the same time that—defendant touched her other intimate parts; nor did she describe any events that may have
separated those acts of touching. Given the lack of evidence
that defendant’s touching of the victim’s breasts was separated from his other abusive acts “by a sufficient pause
in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent,” ORS
161.067(3), the guilty verdict on Count 1 should have merged
with the verdicts on the other two counts.
148                                          State v. Lasheski

          We turn to Counts 2 and 3. The victim testified
generally that defendant repeatedly touched her during the
episode in the tent, that she repeatedly woke up to find him
still touching her, and that she rolled away from him in an
effort to get him to stop. The victim also testified specifically
that defendant touched her vaginal area and her buttocks,
explaining that defendant “was rubbing [her vaginal area]
and then when [she] turned over he put his hands underneath [her] pants and touched [her] backside,” also rubbing
that intimate part. After the victim described that sexual
abuse, as well as defendant’s touching of her breasts, the
prosecutor asked what else defendant had done, and the victim responded, “He played with my backside and my front.”
She specified that defendant was “rubbing [her vaginal
area] still” and “[m]essing and rubbing it with his hands.”
         That evidence supports the jury’s guilty verdicts on
Counts 2 and 3, showing that defendant sexually abused the
victim both by touching her vaginal area and by touching
her buttocks. However, it is not enough to demonstrate the
existence of a “sufficient pause” between the touching of the
two intimate parts. True, the victim’s testimony that defendant was “still” rubbing her vaginal area at one point would
support a finding that defendant abused her in that specific
way over a long period of time, or perhaps repeatedly, during
the criminal episode. But the victim’s testimony that defendant was “still” touching her vaginal area at some unspecified time does not support any finding about the temporal
relationship between that act (or those actions) and the other
sexual abuse to which defendant subjected her.
         On that point, the strongest evidence in the record
is the victim’s testimony that, at some time during the episode, defendant rubbed her vaginal area and then, “when
[she] turned over he put his hands underneath [her] pants
and touched [her] backside.” That testimony does show a
sequence of abusive acts. It is not sufficient, however, to
establish the existence of a pause between those acts that
was “so marked in scope or quality that it afford[ed] a defendant the opportunity to renounce his or her criminal intent.”
Huffman, 

. First, the testimony does not
indicate anything about how much time elapsed from when
the victim rolled over, trying to escape the touching of her
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vaginal area, and when defendant started rubbing her buttocks. Thus, the record does not provide evidence of a pause
of such duration that it would give defendant an opportunity
to renounce his criminal intent.
         Nor does the evidence suggest that any event of
“marked … quality”, 

 separated the abusive acts. It is
not surprising that a victim of sexual assault might move
during the attack, attempting to escape it and communicating her desire that it stop. If additional circumstances give
a defendant an opportunity to renounce his criminal intent,
a victim’s escape attempt can contribute to the finding of a
sufficient pause. See, e.g., Ortiz-Rico, 

(holding that sufficient pause occurred between two rapes
of one victim based on evidence beyond the victim’s escape
attempt, including temporal breaks, the defendant’s movement of the victim from the front seat to the back seat of the
car in which he repeatedly raped her, the defendant’s movement of physical items, and the victim’s communication of
facts that contributed to making the second rape qualitatively different from the first). However, the mere fact that
a victim moves slightly in an attempt to end an assault is
not enough, by itself, to constitute a “sufficient pause” that
will prevent merger. See State v. Campbell, 

, 

 (2014) (victim’s unsuccessful attempt
to escape through the door of the truck in which the defendant was physically assaulting her did not create a “sufficient pause”). That is true even when, as here, that escape
attempt or other actions by the victim expressly or implicitly
communicate a desire for the defendant to stop an attack
and the defendant nonetheless continues. See 

(the victim’s attempt to escape the truck did not establish
a “sufficient pause” even though the defendant responded
by pulling the victim back into the truck, locking the doors,
and continuing his aggression); see also Nelson, 

 (merger required where acts of sexual abuse
occurred sequentially over a brief period of time, in a confined space, without any interruption by a significant event,
and without a pause in the defendant’s aggression, even
though the defendant had asked the victim, in the midst of
the assault, whether she wanted him to stop and she had
said yes).
150                                        State v. Lasheski

         In sum, the record does not support a determination
that a pause of “marked scope or quality” separated the acts
of sexual abuse that form the basis of Counts 2 and 3: defendant’s touching of the victim’s vaginal area and his touching of her buttocks. The trial court should have merged the
guilty verdicts on all three of those counts into a conviction
for a single count of first-degree sexual abuse.
         Convictions on Counts 1, 2, and 3 reversed and
remanded for entry of judgment of conviction on one count
of first-degree sexual abuse; remanded for resentencing;
otherwise affirmed.