State v. Benson

                                       422

  Argued and submitted September 24, 2020; convictions for first-degree rape
(Count 1) and second-degree sexual abuse (Count 2) reversed and remanded for
 entry of a judgment of a single conviction for first-degree rape, remanded for
              resentencing, otherwise affirmed February 24, 2021


                         STATE OF OREGON,
                          Plaintiff-Respondent,
                                    v.
                       JOHN VIRGIL BENSON,
                          Defendant-Appellant.
                       Linn County Circuit Court
                          17CR32143; A168977
                                   

     Defendant challenges his convictions for first-degree rape, ORS 163.375,
second-degree sexual abuse, ORS 163.425, and attempted first-degree sexual
abuse, ORS 161.405; ORS 163.427. After being notified that defendant had sexually assaulted B, the police opened an investigation and then stopped investigating for about seven years and seven months before resuming. Before the bench
trial, defendant moved to dismiss for preindictment delay, but the trial court
denied that motion. On appeal, defendant first assigns error to the trial court’s
denial of his motion to dismiss for preindictment delay. In his third assignment of
error, he asserts, and the state concedes, that the trial court plainly erred when
it failed to merge the guilty verdict of second-degree sexual abuse (Count 2) with
the conviction for first-degree rape (Count 1). Held: The trial court did not err in
denying the motion to dismiss the indictment, but the Court of Appeals accepted
the state’s concession that the trial court plainly erred in failing to merge the
guilty verdicts on Counts 1 and 2. The court rejected defendant’s remaining
assignments of error without further discussion.
     Convictions for first-degree rape (Count 1) and second-degree sexual abuse
(Count 2) reversed and remanded for entry of a judgment of a single conviction for
first-degree rape; remanded for resentencing; otherwise affirmed.



    Daniel R. Murphy, Judge.
   Kali Montague, 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.
Cite as 

 (2021)                          423

  Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
  ORTEGA, P. J.
   Convictions for first-degree rape (Count 1) and second-degree sexual abuse (Count 2) reversed and remanded for
entry of a judgment of a single conviction for first-degree
rape; remanded for resentencing; otherwise affirmed.
424                                          State v. Benson

        ORTEGA, P. J.
         After being notified that defendant had sexually
assaulted B, the police opened an investigation and then
stopped investigating for about seven years and seven
months before resuming. Eventually, a grand jury indicted
defendant with first-degree rape (ORS 163.375), second-degree sexual abuse (ORS 163.425), and attempted first-degree sexual abuse (ORS 161.405, ORS 163.427). Before
the bench trial, defendant moved to dismiss for preindictment delay, but the trial court denied that motion and found
defendant guilty on all charges. On appeal, defendant raises
six assignments of error; we write only to address the first
and third assignments and reject the remaining assignments without further discussion.
         Defendant first assigns error to the trial court’s
denial of his motion to dismiss for preindictment delay. For
his third assignment, he asserts, and the state concedes,
that the trial court plainly erred when it failed to merge the
guilty verdicts of second-degree sexual abuse (Count 2) and
first-degree rape (Count 1). We conclude that the trial court
did not err in denying the motion to dismiss the indictment,
but accept the state’s concession that the trial court plainly
erred in failing to merge the guilty verdicts on Counts 1
and 2. We therefore reverse on those counts and remand for
entry of a single conviction for first-degree rape, remand for
sentencing, and otherwise affirm.
         The background facts are undisputed. In April 2009,
B disclosed to her counselor at Rimrock Trails Adolescent
Treatment Center (Rimrock) that defendant had sexually
assaulted her 11 months earlier. At the time of the assault,
defendant was 21 and B was 16. Following her disclosure,
the Prineville Police Department (PPD) was notified and
interviewed her on April 9. On April 15, the case was transferred to Officer Webber of the Lebanon Police Department
(LPD), who assigned the case to Detective Martinez and
provided him with a short summary of the case attaching
a detailed report from PPD with the interview of B and the
names of potential witnesses to interview. Webber’s summary referred generally to “a report from [PPD] of a possible rape” and stated that he had “reviewed the details.”
Cite as 

 (2021)                                                 425

However, it did not mention the name of the counselor who
made the initial call or any report of it, and the PPD report
itself is not part of the record. An LPD report was generated
that included a crime code designation of “Rape III—Under
16 … Stat[utory] Rape—No Force.” Either Martinez or
Webber likely made the Rape III designation.
         Martinez interviewed B in April and another witness shortly thereafter. He attempted to locate defendant
but was unable to, and the investigation halted within about
a month. Martinez could not provide a complete explanation
of why, except to note that around that time he was reassigned to patrol sergeant and “it was … a situation that
because of transitions and things like that, it appears that
somehow it was overlooked in the process and by incoming
investigators.” Defendant’s criminal history reflected that
LPD, the Linn County Sheriff’s Office, and the Sweet Home
Police Department, all located within Linn County, arrested
defendant numerous times between 2008 and 2016, including for alleged probation and parole violations.
         In November 2016, about 91 months later, LPD
resumed investigation of the case after the LPD records
department, which periodically searches old cases, discovered it in an “open-case search.” The case was eventually
assigned to Detective Padua, who reviewed the original
PPD report and LPD report and resumed the investigation,
ultimately resulting in an indictment in May 2017.
        Before trial, defendant moved to dismiss the indictment, contending that the delay of seven years and seven
months (91 months) violated his right to due process under
the Fifth and Fourteenth Amendments to the United
States Constitution.1 Central to defendant’s argument was
his assertion that the drug-treatment counselor produced a
report documenting B’s initial disclosure that was destroyed
during the delay. To support that argument, defendant’s
investigator, Blehm, testified that he went to Rimrock to

    1
      The Due Process Clause of the Fifth Amendment provides, “No person
shall … be deprived of life, liberty, or property without due process of law[.]”
Similarly, the Due Process Clause of the Fourteenth Amendment provides, “No
State shall … deprive any person of life, liberty, or property, without due process of law[.]”
426                                                      State v. Benson

“find out what their intake policies were” and “what they
did when they [take] somebody in.” He understood that
Rimrock had generated a report but was unable to procure
it. At that point, the court took judicial notice of OAR 415-
054-0430(9), which provided that drug and alcohol treatment records “shall be kept for a minimum of seven years.”
Blehm also testified that he was not able to determine
which Rimrock counselor conducted the intake. At the time
he went to Rimrock to speak to its staff, he did not have a
release of information from B to speak to them about her
case. Martinez also testified at the hearing, but had trouble
recalling details of his investigation.
         Defendant argued that the state was culpable for
the delay because, other than asserting that police could not
locate defendant in 2009, it provided no other justification
or explanation for the 91-month delay. Further, defendant
asserted that the Rimrock counselor generated an intake
report2 when B disclosed the abuse but that the report was
destroyed and no longer available. He pointed to the administrative rule that permits destruction of drug and alcohol treatment records after seven years as proof that the
records were destroyed. Defendant argued that he was thus
prejudiced by not being allowed “the opportunity to examine
and compare” the statements that B made to the Rimrock
counselor with her statements to the detectives. He contended that the statements to the counselor would be “substantively different in character, considering the priorities
and purpose of revealing such personal information,” from
B’s statements to the detective, which were made for investigative purposes. Defendant also argued that, due to the
delay, Martinez had “amnesia to the events that took place
eight years ago when he initially investigated” the case and
that there would be “further witness amnesia to [the] facts”
related to the counselor’s report. Defendant argued that
he was prejudiced because he was “unable to press upon
the facts and view all of the investigative reports and the
details.” The state responded by conceding that the delay
may have been due to negligence or recklessness but was
    2
      Defendant argued, and the state did not dispute, that B’s disclosure was
made at her intake assessment when she entered Rimrock, but offered no further
evidence regarding the details of that disclosure.
Cite as 

 (2021)                                             427

not intentional. Further, according to the state, defendant
failed to show that he was actually prejudiced because his
assertions about the content of the drug and alcohol records
were purely speculative and the records did not necessarily
contain information needed for defendant’s case.
         The trial court denied defendant’s motion. It found
that the state was “clearly culpable in the delay” due to negligence by LPD, but found no evidence of reckless or intentional conduct. The court further found that any prejudice to
defendant was speculative:
   “All of the witnesses are available, or at least there’s no
   evidence they’re not available. And there’s no specific evidence that a witness remembers—would have remembered
   something back at the time of the initial investigation and
   then failed to remember it.”
The court explained that it would have “to speculate about
to what extent or to what degree memory had been attenuated as a result of the delay.”
         The charges against defendant were tried to the
court, which heard testimony that defendant forcibly raped
B and attempted to forcibly place his penis in her mouth.
For that conduct, the court convicted defendant of first-degree rape,3 second-degree sexual abuse,4 and attempted
first-degree sexual abuse.5 At sentencing, the court imposed
   3
      ORS 163.375 provides, in relevant part:
        “(1) A person who has sexual intercourse with another person commits
    the crime of rape in the first degree if:
        “(a) The victim is subjected to forcible compulsion by the person[.]”
    4
      ORS 163.425 provides, in relevant part:
        “(1) A person commits the crime of sexual abuse in the second degree
    when:
        “(a) The person subjects another person to sexual intercourse, oral or
    anal sexual intercourse … and the victim does not consent thereto[.]”
    5
      ORS 163.427 provides, in relevant part:
        “(1) A person commits the crime of sexual abuse in the first degree when
    that person:
        “(a) Subjects another person to sexual contact and:
        “…
        “(B) The victim is subjected to forcible compulsion by the actor[.]”
ORS 161.405(2)(c) provides that a “person is guilty of an attempt to commit a
crime when the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime.”
428                                                         State v. Benson

a true-life sentence under ORS 137.7196 based on convictions from 2011 and 2016 for sexual offenses defendant had
committed after the incident in this case.
          We first address defendant’s challenge to the trial
court’s denial of his motion to dismiss. Defendant argues, as
he did below, that the 91-month preindictment delay violated
his due process rights. In addition to noting that the trial
court’s finding that the state was culpable for the preindictment delay due to negligence is supported by the evidence,
defendant argues that the trial court erred in concluding
that he was not actually prejudiced by the delay. He contends that the missing intake report could have been used
to cross-examine B “on any inconsistencies she might have
from the initial disclosure that preceded her testimony by
nearly a decade” and that, because the case lacked physical
evidence, her credibility was crucial to the state’s case and
the report would have been critical impeachment evidence.
He argues that “[t]here are often inconsistencies the more
times a person describes past events, and even if there were
none after nearly a decade, defense counsel could have challenged [B]’s credibility based on apparent rehearsal of the
charges.” Further, he argues, “knowing what is contained
in an initial disclosure is important to ensure that the witness disclosed based on her own memories and that her
answers were not obtained through suggestive interviewing
tactics.”
          Defendant proposes a second way in which he was
prejudiced, arguing that, had the state promptly advanced
the prosecution, he would not have been subject to a true-life sentence under ORS 137.719. Specifically, defendant
argues that if he had been convicted and sentenced to the
crimes closer to when police began investigating in 2009,
he would have been “incarcerated until at least 2017” and
“would not have had an opportunity to commit the 2011 and
2015 crimes.” Finally, defendant argues that, on balance,
the actual prejudice outweighed the negligent justification
for the delay.
     6
       ORS 137.719(1) provides that “the presumptive sentence for a sex crime
that is a felony is life imprisonment without the possibility of release or parole
if the defendant has been sentenced for sex crimes that are felonies at least two
times prior to the current sentence.”
Cite as 

 (2021)                                               429

          The state counters that the trial court properly
denied defendant’s motion to dismiss, though it does not
challenge the court’s finding that the delay was attributable
to the state’s negligence. It argues that defendant failed to
carry his burden of proving substantial, actual prejudice
resulting from the delay because “it is unknown whether the
counselor actually mentioned the disclosure in the report
and, if so, what the counselor reported.” Consequently, defendant can only speculate that the missing report might have
helped his defense7—and to the extent defendant showed
actual prejudice, that prejudice was slight. Thus, given the
lower level of government culpability, on balance, the delay
“did not violate society’s fundamental conceptions of justice, fair play, and decency, and hence did not violate due
process,” according to the state. Further, addressing defendant’s claim that he was prejudiced because, but for the
delay, he would not have been subject to a true-life sentence
under ORS 137.719, the state argues that defendant failed
to preserve that argument and we should not consider it.
In all events, the state contends that defendant’s argument
regarding the availability of a true-life sentence fails on the
merits.
          In a reply brief, defendant raises another reason
why, in his view, the report was valuable impeachment
evidence. Defendant notes that the LPD report indicated
that the case was initially determined to be third-degree
rape with “no force.” Because defendant was indicted about
a decade later for first-degree rape by forcible compulsion,
“[h]aving the report of the initial disclosure would have provided defendant with, at a minimum, the counselor’s identity to question her about that discrepancy, which defendant could have used to impeach” B. Further, regarding

     7
       The state also argues, in what amounts to an alternative basis to affirm,
that defendant failed to establish even the existence of the treatment report or
that it was destroyed. However, the record reveals that there are competing inferences that could be drawn from the evidence that was presented on these points.
Further, the trial court did not make any factual findings regarding whether the
report existed or was unavailable. Therefore, this is not a case where we would
exercise our discretion to apply the “right for the wrong reason” principle and
affirm on an alternative basis. See Outdoor Media Dimensions Inc. v. State of
Oregon, 

, 

 (2001) (discussing conditions that must
be met for reviewing court to affirm on an alternative basis, including that the
“facts of the record be sufficient to support the alternative basis to affirm”).
430                                                       State v. Benson

defendant’s assertion that he was prejudiced because he
received a true-life sentence, he contends that, contrary to
the state’s argument, he sufficiently preserved his claim.
Alternatively, he asks us to exercise our discretion to review
the claim for plain error.
        We review a trial court’s denial of a motion to
dismiss for preindictment delay for errors of law. State v.
Whitlow, 

, 

 (2014). We are
bound by the trial court’s express and implicit factual findings that are supported by the record. State v. Davis, 

, 

 (2008).
       Preindictment delay implicates a defendant’s Fifth
and Fourteenth Amendment due process rights. Whitlow,

. As the Supreme Court has explained:
   “To demonstrate that preindictment delay violated the federal Due Process Clause, a defendant must show that the
   delay actually prejudiced the defendant and that the government culpably caused the delay. A court must weigh the
   government’s reasons for the delay against the prejudice to
   determine whether the delay violated our society’s fundamental conceptions of justice, fair play, and decency.”8
State v. Stokes, 

, 

 (2011) (relying on the minority test as established in the Ninth and
Fourth Circuit Courts of Appeal). The “statute of limitations
is a defendant’s primary protection” against a state delay in
bringing criminal charges, “making due process violations
unusual.” 

.
         To guide our decision, we look to prior cases evaluating whether a defendant’s due process rights were violated
from preindictment delay. In Davis, a murder prosecution,
the court rejected the defendant’s contention that he was
prejudiced by an 11-year delay from the loss of evidence and
witnesses. 

. The defendant provided the state
with an alibi as to his whereabouts on the night of the murder that was corroborated by several witnesses, and another
potentially important witness could not be located. 

. The investigation “stalled” and, other than a lead
    8
      For purposes of preservation, the state challenges the standard set out in
Stokes. However, it concedes that we are bound by that decision.
Cite as 

 (2021)                               431

that was pursued about five years later but went nowhere,
did not resume for about 10 years until a witness came forward with information that the defendant had admitted to
the murders. Id. at 559-60. From that lead, the investigation
turned up new witnesses, and the state was able to finally
locate and interview the missing witness who provided
inculpatory information. Id. Approximately 11 years after
the halt in the investigation, the defendant was ultimately
convicted of aggravated murder. Id. at 564.
         The defendant argued that he was prejudiced by
the 11-year prosecutorial delay from the loss of items that
were obtained by the police when the investigation began
but that were missing by the time he was indicted, and by
the unavailability of other items or information that the
police could or should have obtained through diligent investigation. Id. at 573. The court rejected those arguments,
concluding that the defendant’s claims of prejudice from
the unavailability of those items was based on speculation.
Id. at 574.
   “Those potential witnesses and possible items of evidence
   might have shed light on the case, and the light they shed
   might have been favorable to [the] defendant. Or they
   might have had no evidentiary value, or they might have
   bolstered the case against defendant. Either conclusion
   requires speculation.”
Id. at 575.
         The court explained that “[s]imply identifying items
and information of undetermined evidentiary value that
the police theoretically could have obtained does not satisfy defendant’s burden to demonstrate actual prejudice.”
Id. The court also rejected the defendant’s argument that
he was prejudiced by the loss of a 9-1-1 call because “the
asserted value of its contents is … entirely speculative,”
and noted that “[n]othing in the record … suggests that
the contents [of the recording] would support” his defense
theory as to the call’s value. Id. at 575-76. Regarding the
balancing of the state’s culpability for the delay against the
asserted prejudice, the court concluded that, “[e]ven if the
prejudice on which [the] defendant relies is sufficient to be
placed on the scale … it at most would weigh very lightly.”
432                                             State v. Benson

Id. at 576. “[A]s a matter of law, the reason for the state’s
delay in indicting defendant—i.e., the need to sufficiently
investigate the crimes and obtain probable cause to bring
charges—do not tip the scales at all.” Id. at 576. Thus, the
court concluded that the defendant had failed to establish
any due process violation from the preindictment delay.
Id. at 578.
         Stokes came to a similar conclusion. In that case,
the defendant was under investigation for sex crimes, but
the state closed the investigation when the prosecutor
learned that the defendant would be serving a life sentence
in California on an unrelated case. Stokes, 

.
As a result, three years later, the police purged its evidence
file on the case, destroying a 9-1-1 call recording, the contents of a rape kit, the victim’s clothing, and towels and
clothing taken from the defendant’s house the day after the
assault. 

. Eight years after the state’s decision to
close the case, another prosecutor in the same office learned
that the defendant’s California conviction was reversed.

 The prosecutor reopened the defendant’s case, which
ultimately led to his conviction on sexual assault charges.

         The defendant argued that the eight-year, preindictment delay violated his due process rights because of
the lost evidence and witnesses. 

. The trial court
denied the defendant’s motion, and this court affirmed.

.
         On review, the Supreme Court affirmed. The court
first evaluated whether the defendant had met his burden of
showing actual, non-speculative prejudice. With regard to
the loss of the rape kit, the victim’s clothing, and the towels
and clothing seized from the defendant’s house, the court
noted that,
   “[p]resumably, [the] defendant would contend that [that evidence] may have been inconsistent with the state’s theory,
   although [the] defendant does not offer a specific reason
   why the loss of that evidence was prejudicial. Indeed, without knowing the quality of that evidence, [the] defendant
   can only speculate that it might have helped his defense.”
Cite as 

 (2021)                                433

Id. at 60. Regarding the loss of one witness and the 9-1-1
call, the court noted that the defendant’s claim that one victim and the 9-1-1 call “might have” shown that the victim
had a calm demeanor after the assault was too speculative.
Id. at 60-61. Specifically, the court stated that the defendant
did not point to any evidence “supporting a conclusion that
the [witness] or the 9-1-1 tape was more likely to help rather
than hurt [the] defendant’s case. He can only speculate as to
the victim’s demeanor.” Id. at 61.

           Even accounting for the government’s culpability,
the court noted that the defendant had demonstrated “only
the slightest potential prejudice caused by the delay, which
‘[e]ven if … sufficient to be placed on the scale for purposes
of the … balancing test, … at most would weigh very
lightly.’ ” Id. at 61. The court concluded that “[t]he state initially closed the case based on a good-faith belief that [the]
defendant would serve a life sentence” and prosecuting the
case “was not a good use of public resources.” Id. at 62-63.
Thus, the court concluded that “the state’s actions do not
demonstrate the government culpability and the degree of
actual prejudice that violate due process.” Id. at 63.

        Whitlow came to the opposite conclusion. There,
the defendant was being investigated for possible sexual
abuse charges. After the lead detective interviewed the
victim and spoke to her mother and a staff member from
the child abuse assessment center where the victim was
examined and interviewed, he authored an investigative
report. Whitlow, 

. However, the detective
ceased any further investigation after only a few days. 

About 19 months later, the district attorney’s office reviewed
the case and declined to prosecute, noting that the victim
could not be located. At the time, the victim was living and
attending middle school in a neighboring county. 

 The
case was reopened about four years after the victim first
reported the abuse when an anonymous caller contacted the
Department of Human Services (DHS) to report that the
defendant had molested the victim. 

. By this
time, the lead detective had left the sheriff’s office and relocated to Puerto Rico. 

. About five years after the
victim had first reported the sexual abuse, the defendant
434                                            State v. Benson

was indicted on multiple counts of sexual abuse. 

.
At trial, the victim testified to incidents of sexual assault
that were not included in the detective’s original report. 

When defense counsel questioned her about whether she had
reported those incidents to the detective, she responded that
she could not remember. 

 After the first trial resulted in
a mistrial and the state re-prosecuted the case, the defendant moved to dismiss based on preindictment delay. 

 He
argued that he was prejudiced because, due to the delay, the
lead detective who authored the report was unavailable and
he therefore could not call him as a witness to impeach the
victim’s trial testimony as inconsistent with her statements
of the alleged abuse contained in his report. 

.
The trial court granted the motion and the state appealed.

          On appeal, we affirmed. First, we agreed with
and accepted the state’s concession that the lead detective
was unavailable as a result of the preindictment delay.

. We then examined whether the state was culpable
for the delay and concluded that the state was “unjustified
and negligent in delaying the indictment.” 

 We explained
that “investigative activity inexplicably ceased … almost
immediately after it began, and no further investigation
occurred until DHS received an anonymous call [about four
years later].” 

. We further noted that “the record
[did not] disclose any other significant investigative difficulties,” and that the “state has provided no rational, good-faith
justification for why the case against defendant languished
for years.” 

 (emphasis in original). With respect
to actual prejudice, we rejected the state’s argument that
the asserted prejudice was speculative, concluding that the
defendant had “identified with particularity the asserted
actual prejudice resulting from [the lead detective’s] unavailability.” 

. We noted that “the nature and content of
the ‘missing’ or ‘lost’ evidence, [the lead detective’s] putative testimony, and its utility to the defense” was “far from
‘speculative’ ”:
   “It is hardly ‘speculative’ to assume that an experienced
   detective would confirm the thoroughness of his or her
   interview with the complainant in a sexual abuse investigation and the comprehensive accuracy of the consequent
Cite as 

 (2021)                              435

   investigative report. Nor is it speculative to posit that
   such first-person testimony by the principal investigating
   detective—as opposed to mere admission of the report
   itself—would likely powerfully buttress an implication of
   material inconsistency by the complainant.”

Id. at 348. We also rejected the state’s argument that the
defense could have called another detective to impeach the
victim, concluding that it was “the discrepancy between
[the lead detective’s] report and [the victim’s] testimony that
[was] crucial to [the] defendant’s impeachment theory,” and
the other officer’s testimony was “not an equivalent substitute.” Id. (emphasis in original). Thus, giving no weight to
the state’s unjustified and negligent delay, we concluded that
“on balance, the actual prejudice to [the] defendant, which,
in this credibility-predicated case is substantial, outweighs
the state’s reasons for the delay.” Id. at 350.
          Here, the state does not challenge the trial court’s
finding that it was culpable for the 91-month delay. This case
is unlike Stokes where the state had a good-faith basis to
halt the investigation to save public resources based on the
belief the defendant would be incarcerated for life in another
state. Rather, like Whitlow, “investigative activity inexplicably ceased … almost immediately after it began,” and “the
record [did not] disclose any … significant investigative
difficulties.” 

. Also like Whitlow and
unlike Stokes, the “state provided no rational, good-faith justification for why the case against defendant languished for
years.” 

. Accordingly, the trial court’s finding that
the state was culpable and negligent for the pre-indictment
delay is supported by the record.
          We next consider whether defendant established
that he was actually prejudiced by the delay, beginning
with his argument that, because of the delay, he was subject to a life sentence. As noted, the state argues that defendant failed to preserve that argument. On the merits, the
state contends that defendant’s argument fails because
(1) it was not the state but defendant who caused that “prejudice”; (2) sentencing consequences are not a cognizable basis
for a claim that preindictment delay violated due process;
(3) defendant’s claim of sentencing prejudice is speculative
436                                           State v. Benson

because ORS 137.719(2) provides authority for a downward
departure based on “substantial and compelling reasons”;
and (4) even if due process extends to this context, the remedy would be limited to “a challenge at sentencing to the
application of ORS 137.719” and would not merit a dismissal
of the indictment.
          Defendant responds that he sufficiently preserved
his argument. He notes that he assigned error to the trial
court’s denial of his motion to dismiss and, relying on Stull
v. Hoke, 

, 

 (1997), contends that,
although his basis for establishing prejudice on sentencing
grounds is different than the basis he asserted at the trial
level, “the overarching error—that the state’s 91-month delay
prejudiced defendant—was before the court.” Alternatively,
defendant asks that we review the error as plain, because
the error appears on the face of the record and because it is
obvious that sentencing consequences flowing from a preindictment delay violate due process.
         In general, a claim of error that has not been raised
in the trial court will not be considered on appeal. State v.
Parkins, 

, 

 (2009). Typically,
raising an issue at trial is “essential,” whereas identifying a
source for a claimed position or making a particular argument is less so. State v. Hitz, 

, 

(1988). For adequate preservation, an issue must be “raised
with sufficient clarity in the trial court to put the trial
court on notice that it needs to rule on the issue and for the
opposing party to have an opportunity to address the issue.”
Ploplys v. Bryson, 

, 

 (2003).
The preservation requirement permits a trial court to consider and rule on a contention first, thus possibly avoiding
an error or correcting one already made. Peeples v. Lampert,

, 

 (2008). Additionally, it “fosters
full development of the record, which aids the trial court in
making a decision and the appellate court in reviewing it.”

. Ultimately, preservation decisions will turn on
whether the court concludes that the policies underlying the
rule have been adequately served. Parkins, 

.
       Here, consideration of defendant’s argument that
he was prejudiced by the preindictment delay because he
Cite as 

 (2021)                             437

became subject to a true-life sentence under ORS 137.719
would not comport with preservation principles. In his motion
to dismiss, defendant asserted that he was prejudiced by
the delay because an alleged report of B’s initial disclosure
to her counselor became unavailable and that, as a result
of the delay, Martinez “had amnesia” as to the events and
that there would be “further witness amnesia” related to
the missing counselor’s report. The state’s response and the
trial court’s ultimate conclusion were based on the view that
defendant’s claims required speculation as to the impacts
of the missing report and any impact on witness memory.
There is nothing in the record that reasonably alerted the
trial court to an argument that defendant was prejudiced
because he was now subject to a true-life sentence, nor did
the state have a reason to address that issue. Even at defendant’s sentencing when the state argued for the imposition
of a true-life sentence under ORS 137.719, there was no suggestion that the imposition of such a sentence was attributable to preindictment delay. Accordingly, the policies underlying the preservation rule were not served.

         Further, we do not consider the claimed error to
be plain. For an error to be considered plain, it must satisfy three criteria: (1) it must be legal error; (2) it must be
“apparent,” such that “the legal point is obvious, not reasonably in dispute”; and (3) it must appear on the face of the
record. State v. Brown, 

, 

 (1990).
In this case, the only question is whether the error is sufficiently “apparent.” Defendant argues that the error is obvious because he “retains a due process interest in having a
sentencing proceeding that is fundamentally fair.” However,
it is not obvious that the preindictment delay led to the
sentencing consequences that occurred in this case. As the
state points out, ORS 137.719(2) provides an opportunity for
a downward departure based upon findings of “substantial
and compelling reasons” and it is at least arguable that,
as the state contends, the difference in sentencing posture
was, for these purposes, a consequence of defendant’s own
actions, not the preindictment delay.

        We turn to the alleged prejudice from the loss of
the treatment report. Like the 9-1-1 call in Davis and the
438                                          State v. Benson

lost evidence in Stokes, the report here “might have been
favorable to defendant. Or [it] might have had no evidentiary value, or [it] might have bolstered the case against
defendant,” but “[e]ither conclusion requires speculation,”
Davis, 

. However, “[w]ithout knowing the quality of [the lost] evidence, [a] defendant can only speculate
that it might have helped his defense.” Stokes, 

. Therefore, defendant has failed to show “actual, substantial prejudice” from the preindictment delay. See Davis,

 (the test for due process, preindictment delay
“require[s] that a defendant show actual, not presumed, substantial prejudice”); Stokes, 

 (actual prejudice
from lost evidence requires some showing that the lost evidence was “more likely to help rather than hurt defendant’s
case”).

         Whitlow, on which defendant relies, is distinguishable. There, the victim testified inconsistently with her initial disclosure about the abuse, which was known because
the lead detective’s report containing her initial disclosure was part of the record. Thus, the value of the missing
evidence—the lead detective’s testimony that was unavailable as a result of the delay—could be inferred from his
report. In contrast, here, defendant did not establish that
the report contained any information about B’s initial disclosure or, if it did, whether that information would have
been helpful to him.

         We recognize the difficulty a defendant faces when
attempting to establish actual prejudice from the loss of
evidence that he cannot view to assess its potential value.
However, as the Oregon Supreme Court has made clear,
it is the “statutes of limitation, and not due process, [that]
protect defendants against the possible prejudice caused by
preindictment delay.” See Stokes, 

. Due process
requires a defendant to establish that there was “substantial, actual prejudice,” and the focus of that inquiry is on
“whether the delay violated our society’s fundamental conceptions of justice, fair play, and decency.” 

. And
to establish actual prejudice, a defendant must be able to
point to something in the record that would allow an inference that the lost evidence would have helped his case to
Cite as 

 (2021)                                            439

establish actual prejudice. Here, defendant’s arguments are
based on presumptions about the contents and quality of the
report.
          Further, although defendant contends that the
report was needed to obtain the counselor’s name to question her about the detective’s early designation of the crime
as not involving force, defendant failed to establish that he
could not have obtained the name by another means, such as
by contacting PPD, the agency that spoke to the counselor,
or LPD, the agency that later took over PPD’s investigation
and obtained its report. See Davis, 

 (concluding
that the trial court did not err in its pretrial ruling that the
defendant did not suffer undue prejudice by the loss of a 9-1-1
recording or by the evidentiary ruling that defendant could
not elicit a description from a written report because defendant could have sought out the information by other means).
Defendant has thus failed to meet his burden to establish
that he was actually prejudiced by its absence. Therefore,
despite the state’s negligence in causing the delay, the trial
court did not err in denying defendant’s motion to dismiss.
         Next, we turn to defendant’s argument that the
trial court plainly erred in failing to merge the guilty verdict of Count 2 (second-degree sexual abuse) with the guilty
verdict of Count 1 (first-degree rape). See ORAP 5.45 (providing requirements for plain-error review). Defendant
contends that those verdicts merge because the charges
involve statutes with coextensive statutory elements. See
ORS 161.067(1).9 Specifically, defendant notes that Count 1
alleged that defendant committed first-degree rape, ORS
163.375(1), by having sexual intercourse with B using “forcible compulsion,” and Count 2 alleged that defendant committed second-degree sexual abuse, ORS 163.425, by subjecting B to sexual intercourse without B’s consent. And,
defendant asserts that because “proof of forcible compulsion
necessarily establishes that the victim did not consent,” ORS
161.067(1) precludes entry of separate convictions. See State
   9
     ORS 161.067(1) provides:
       “When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the
   others do not, there are as many separately punishable offenses as there are
   separate statutory violations.”
440                                                         State v. Benson

v. Leistiko, 

, 

 (2012) (explaining
that “[i]mplicit in the requirement that a defendant caused
the victim to engage in sexual intercourse by means of forcible compulsion is the proposition that the sexual act did not
occur as a result of the victim’s consent”).
         The state agrees that the trial court plainly erred.
We agree and accept the state’s concession. See State v.
Ledford, 

, 

 (2012), abrogated
on other grounds by State v. Gray, 

, 

 (2014) (concluding that trial court plainly erred
in failing to merge guilty verdicts on first-degree rape and
second-degree sexual abuse). Further, for the reasons stated
in State v. Ryder, 

, 

 (2009),10
we conclude that it is appropriate to exercise our discretion
to correct the error.
         Convictions for first-degree rape (Count 1) and
second-degree sexual abuse (Count 2) reversed and remanded
for entry of a judgment of a single conviction for first-degree
rape; remanded for resentencing; otherwise affirmed.




    10
       There, we concluded that it was appropriate to exercise discretion to correct plain error because the gravity of the error (the imposition of an additional
felony conviction) strongly militated in favor of the exercise of discretion, there
was no indication that the defendant declined to object for strategic reasons, and
the burden on the judicial system to amend the judgment and resentence the
defendant was minimal.