State v. Paye

                                       408

  Argued and submitted October 19, 2018; convictions on Counts 1, 4, 5, and 6
reversed and remanded, reversed and remanded to address merger in a manner
  consistent with this opinion, remanded for resentencing, otherwise affirmed
                                  April 7, 2021


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                    MARCUS LOINU PAYE,
             aka Loinu Mark Paye, aka Marcus Paye,
              aka Mark Paye, aka Mark Loinu Paye,
                      Defendant-Appellant.
                Multnomah County Circuit Court
                      15CR50132; A162421
                                   

     Defendant appeals a judgment of conviction for two counts of compelling prostitution and seven counts of promoting prostitution. He assigns error to, among
other things, the trial court’s (1) acceptance of nonunanimous verdicts on Counts
1, 4, 5, and 6, (2) denial of defendant’s motion to suppress evidence obtained from
his electronic devices, and (3) failure to merge the guilty verdicts on all counts of
promoting prostitution (Counts 2, 3, 5, 6, 14, 15, and 16). Defendant asserts that
the warrant to search for evidence of his crimes on his electronic devices was
overbroad. Defendant argues that all counts of promoting prostitution should
merge with Count 16 because Count 16, predicated on defendant maintaining a
prostitution enterprise over a period of time, was supported by the conduct underlying other counts of promoting prostitution, which were all predicated on specific
instances of unlawful conduct. Held: The trial court erred in accepting nonunanimous verdicts on Counts 1, 4, 5, and 6. The court did not err in denying defendant’s motion to suppress evidence obtained from his electronic devices, because
the warrant articulated with specificity the type of evidence that it would be
reasonable to believe would be on defendant’s computer and, under the standards
for searches of electronic devices, was not overbroad. See State v. Mansor, 

, 

 (2018). As for the remaining counts of promoting prostitution,
the court also erred in failing to merge the guilty verdicts on each of Counts 2, 3,
14, and 15 with the guilty verdict on Count 16.
     Convictions on Counts 1, 4, 5, and 6 reversed and remanded; reversed and
remanded to address merger in a manner consistent with this opinion; remanded
for resentencing; otherwise affirmed.



   Karin Johana Immergut, Judge. (Judgment and Amended
Judgments)
   John A. Wittmayer, Judge. (Judgment of Dismissal)
   Anne Fujita Munsey, Deputy Public Defender, argued
the cause for appellant. Also on the briefs was Ernest G.
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Lannet, Chief Defender, Criminal Appellate Section, Office
of Public Defense Services.
   Doug M. Petrina, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before DeHoog, Presiding Judge, and Lagesen, Judge, and
Aoyagi, Judge.*
   LAGESEN, J.
   Convictions on Counts 1, 4, 5, and 6 reversed and
remanded; reversed and remanded to address merger in a
manner consistent with this opinion; remanded for resentencing; otherwise affirmed.




______________
   * Lagesen, J., vice Hadlock, J. pro tempore.
410                                              State v. Paye

        LAGESEN, J.
         Defendant appeals a judgment of conviction for two
counts of compelling prostitution in violation of ORS 167.017
and seven counts of promoting prostitution in violation of
ORS 167.012. He raises numerous assignments of error,
including to the trial court’s acceptance of nonunanimous
verdicts on the two counts of compelling prostitution and two
of the counts of promoting prostitution (Counts 1, 4, 5, and 6).
As required by the Sixth and Fourteenth Amendments to
the United States Constitution under Ramos v. Louisiana,

, 

, 

 (2020), and
State v. Ulery, 

, 

 (2020), we reverse
the convictions on which the jury did not unanimously agree.
We conclude further that the guilty verdicts on Counts 2,
3, 14, and 15 each merge with the guilty verdict on Count
16 and remand for further proceedings consistent with that
conclusion. We otherwise reject or do not reach the remaining assignments of error.
   I. FACTUAL AND PROCEDURAL BACKGROUND
         Defendant ran a prostitution business. He promoted
the business by advertising women on Backpage.com. He
also encouraged and sometimes compelled women to have
sex for money; they would then give defendant the money.
        In July 2015, S met defendant at a MAX station the
day before her eighteenth birthday. She was with defendant
for about a week. At some point during that time, defendant
threatened to kill her and her family if she did not make
money for him by having sex with others. So S did exactly
that. Defendant took her to 82nd Avenue in Portland, where
she had sex for money with two different men and then gave
the money to defendant. Afterward, they returned to defendant’s residence, from which S escaped that night while
defendant was sleeping.
        About three months later, having obtained a fair
amount of information indicating that defendant was involved
in a prostitution business, officers executed a search warrant on defendant’s residence, seeking evidence of defendant’s involvement in prostitution-related activities. They
found N sleeping in defendant’s home. The search pursuant
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to the warrant, which authorized the seizure of computers and cell phones from defendant (among other things)
and the search of those devices for evidence of defendant’s
prostitution-related activities, ultimately resulted in the
discovery of a large amount of evidence (both directly and
derivatively) that defendant had been engaged in promoting
prostitution. Officers discovered that defendant had been
advertising N on Backpage.com around the time they executed the warrant. They also discovered that, at the end of
2014, defendant had been advertising a different woman, H,
on Backpage.com, along with other evidence of defendant’s
general involvement in the prostitution business.
        As a result of those discoveries, the state charged
defendant with nine offenses related to S, N, and H.1
Regarding S, the state charged defendant with two counts
of compelling prostitution (Counts 1 and 4) and four counts
of promoting prostitution (Counts 2, 3, 5, and 6). Regarding
N, the state charged defendant with one count of promoting prostitution (Count 15). Regarding H, the state charged
defendant with two counts of promoting prostitution (Counts
13 and 14). The state also charged defendant with one count
of promoting prostitution that did not allege that defendant’s
promoting activities involved a particular individual (Count
16).
        Before trial, defendant moved to suppress the evidence discovered pursuant to the search warrant on the
ground that the warrant was overbroad and did not comport
with the particularity requirement of Article I, section 9, of
the Oregon Constitution. The trial court denied the motion.
         Defendant exercised his right to a jury trial and,
following trial, the jury found defendant guilty on each of
the counts mentioned above. Its verdicts on Counts 1, 4, 5,
and 6 were not unanimous; its verdicts on the remaining
counts were. Defendant appealed, raising 10 assignments of
error. In his first assignment of error, defendant challenges
the denial of his motion to suppress. In his second and third

    1
      The state charged defendant with a number of other prostitution-related
offenses, some involving different victims, but some of those charges were severed for trial, the state dismissed some before trial, and the jury acquitted defendant of others.
412                                              State v. Paye

assignments of error, he contends that the trial court erred
by not merging (1) the guilty verdicts for promoting prostitution on Counts 2 and 3; and (2) the guilty verdicts for promoting prostitution on Counts 5 and 6. In his fourth assignment
of error, he contends that the court erred by not merging
the guilty verdicts on all counts of promoting prostitution
(Counts 2, 3, 5, 6, 14, 15, and 16). In his fifth assignment of
error, defendant contends that the court erred by declining
to merge the guilty verdicts for compelling prostitution on
Counts 1 and 4. In his sixth assignment of error, defendant
contends that the court erred in categorizing defendant in
grid block 8-B on Counts 4 through 6, and in his seventh
assignment of error he contends that the court erred in categorizing him in grid block 8-A on Counts 14 through 16. In
his eighth assignment of error, he contends that the court
plainly erred in imposing a $3,000 compensatory fine. In
his ninth assignment of error, he contends that the court
erred in instructing the jury that it could return nonunanimous verdicts and that that error requires the reversal of
all convictions, including those on which the jury’s verdict
was unanimous. Finally, in his tenth assignment of error,
defendant asserts that the trial court erred in accepting
nonunanimous verdicts on Counts 1, 4, 5, and 6.
                       II. ANALYSIS
          As we will explain, defendant is entitled to relief on
his tenth assignment of error and the reversal of his convictions on Counts 1, 4, 5, and 6. Defendant is not entitled to
relief from his convictions on the other counts, but, on this
record, the guilty verdicts on Counts 2, 3, 14, and 15 each
merge with the guilty verdict on Count 16. Those conclusions
obviate the need to address defendant’s remaining assignments of error, which present issues that may not recur on
remand.
A.    Nonunanimous Verdicts
          We start with defendant’s ninth and tenth assignments of error because our resolution of them has the potential to affect the need to address some of defendant’s other
assignments of error. Those assignments assert, respectively, that the trial court plainly erred by instructing the
jury it could convict defendant by a 10-2 verdict and that
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the trial court plainly erred by accepting the nonunanimous
verdicts on Counts 1, 4, 5, and 6. As the state correctly concedes, under Ramos, 590 US at ___, 

, and
Ulery, 

, defendant is entitled to a reversal of
his convictions on Counts 1, 4, 5, and 6, because those convictions were based on nonunanimous verdicts. Defendant
is not, however, entitled to reversal of the other convictions that were based on unanimous verdicts. See State v.
Chorney-Phillips, 

, 

 (2020);
State v. Ciraulo, 

, 

 (2020).
B.   Motion to Suppress
          In his first assignment of error, defendant challenges
the denial of his motion to suppress the evidence obtained
from his electronic devices. He contends that the warrant
was impermissibly overbroad, in violation of Article I, section
9. Specifically, relying on the analysis in our decision in State
v. Mansor, 

, 

 (2016) (Mansor I),
aff’d, 

, 

 (2018) (Mansor II), defendant
argues that the warrant was insufficient to comport with
the constitution because (1) it lacked temporal limitations;
(2) in defendant’s view, it was too broad in terms of the items
it authorized police to search; and (3) it did not restrict the
locations in which police could look for evidence of the crimes
that the warrant authorized them to look for.
          Defendant’s assertion that the warrant was overbroad presents a question of law that we review for legal
error. State v. Savath, 

, 

,
rev den, 

 (2019). We consider that question in
light of the Supreme Court’s decision in Mansor II. Although
the Supreme Court affirmed our decision in that case, its
“analysis differ[ed] in some respects from that of” our court
in some fairly significant ways. Mansor II, 

.
          In Mansor II, the Supreme Court set forth the considerations for assessing whether a warrant to search for
digital evidence on a device such as a computer or a cell
phone comports with the particularity requirement of
Article I, section 9. 

. The court explained that,
to satisfy that requirement, a warrant must identify any
items to be searched for and seized with sufficient specificity to allow officers to find them with a reasonable amount of
414                                                 State v. Paye

certainty, and also must not authorize a search that is overbroad, given the probable cause that justifies the search.

. After considering the unique characteristics of
digital evidence that make searches of it and for it very
different from searches of and for physical evidence, the
Supreme Court concluded as follows:
   “The warrant to search a computer must be based on affidavits that establish probable cause to believe that the computer contains information relevant to the criminal investigation. To meet the particularity requirement of Article I,
   section 9, the warrant must identify, as specifically as reasonably possible in the circumstances, the information to
   be searched for, including, if relevant and available, the
   time period during which that information was created,
   accessed, or otherwise used. We emphasize, however, based
   on our discussion of digital devices and computer searches
   above … that the forensic examination likely will need to
   examine, at least briefly, some information or data beyond
   that identified in the warrant.”

. The court emphasized that, “when a time-based
description of the information sought on a computer is relevant and available to the police, it ordinarily should be
set out in the affidavit, and the warrant should include
that description.” 

 But, the court cautioned, “analytically, ‘temporal limitations’ are more accurately seen as a
way of identifying with greater specificity the ‘what’ that is
being searched for, rather than as a separate, independently
required element, in meeting the particularity requirement
for a computer search.” 

 The court rejected the argument
that the particularity requirement of Article I, section 9,
required that a warrant specify the particular locations on
a computer or other digital device. 

.
        Considering the warrant at issue here in view of the
Supreme Court’s decision in Mansor II, we reject defendant’s
contentions that it is overbroad.
          First, to the extent that defendant argues that the
warrant is overbroad because it did not specify the locations
on defendant’s computer that could be searched, Mansor II
squarely rejected that contention. 

 (“[A] valid warrant to
search a computer need not identify ‘places’ to search at that
level of abstraction.”).
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 (2021)                                 415

         Second, to the extent that defendant argues that
the warrant is overbroad for failing to identify the items
that could be searched for, we disagree. Defendant does not
dispute that the affidavit supporting the warrant demonstrated probable cause that defendant had committed the
crimes of promoting prostitution and compelling prostitution and was engaged in an ongoing enterprise of promoting prostitution, and that evidence of those crimes would
be present on defendant’s computer. As the affidavit supporting the warrant explained, defendant’s conduct came to
light after the father of C, one of the women whose prostitution services defendant promoted, reported defendant to
police. C reported to police that defendant would have her
“walk 82nd” and that she thought defendant would beat her
if she did not prostitute for him. C also told police that defendant “had other women working for him,” and that she had
“observed ‘listings’ on his computer.” Additionally, a security
guard at a medical clinic reported to police that defendant
“was often seen with young women, and that one of these
women tried to solicit the security guard for a prostitution
date.”
         Beyond that, the warrant spelled out, with reasonable specificity, exactly what type of evidence of those particular crimes it was reasonable to believe would be found on
defendant’s computer:
   “Any and all evidence documenting the [crimes of promoting prostitution and compelling prostitution], to include:
   any and all digital images, digital video clips, and or photographs depicting [C], and/or any other as-of-yet unidentified females; Contact information: to include, telephone
   numbers, names, and electronic mail (email) addresses;
   private messages; data storage identifying information;
   SMS/text messages and history; emails[.]”

In our view, those specifications—which indicate that the
evidence expected to be found on defendant’s computer consists of images and videos of women he prostituted, contact
information for people connected with the crimes, and communications about the crimes—satisfy the standard set by
Mansor II for describing what evidence reasonably can be
expected to be found on a computer:
416                                                 State v. Paye

   “Following Wheeler[ v. State, 135 A3d 282 (Del 2016)]—and,
   indeed, general principles of search and seizure law—we
   agree that to satisfy the particularity requirement, a warrant must describe, with as much specificity as reasonably
   possible under the circumstances, what investigating officers believe will be found on the electronic devices. …
   [F]or the reasons discussed above regarding the nature of
   digital evidence, the ‘what’ is a description of the information related to the alleged criminal conduct which there is
   probable cause to believe will be found on the computer.”

Id. at 216 (emphases in original).
        Finally, although defendant is correct that the warrant lacked temporal limitations, under Mansor II’s reasoning, that omission does not render the warrant unconstitutionally overbroad under the circumstances of this case.
Addressing the need to include temporal limitations in a
warrant for the search of a computer, the Supreme Court
held:
   “And we agree with the reasoning in Wheeler and the cases
   cited there that when a time-based description of the information sought on a computer is relevant and available to
   the police, it ordinarily should be set out in the affidavit,
   and the warrant should include that description. That said,
   analytically, ‘temporal limitations’ are more accurately
   seen as a way of identifying with greater specificity the
   ‘what’ that is being searched for, rather than as a separate,
   independently required element, in meeting the particularity requirement for a computer search.”

Id. at 218.
          As we understand that holding, temporal limitations
generally should be included when “relevant and available.”
But, the omission of such limits is not, ultimately, problematic if such limitations are not “relevant and available to the
police,” and if the warrant otherwise adequately identifies
with specificity the evidence expected to be found based on
the probable cause determination. Here, as noted, the warrant was supported by probable cause that defendant was
engaged in an ongoing enterprise promoting prostitution,
and that evidence of that enterprise would be found on his
computer. The warrant identified with specificity what the
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evidence was. There is no indication that specific relevant
time frames pertaining to that ongoing activity were “available to the police,” and, given the ongoing nature of defendant’s prostitution business, such limitations, to the extent
relevant, are not highly so. Thus, under Mansor II, this is
not a situation in which the omission of temporal limitations
renders the warrant unconstitutionally overbroad.
        The trial court therefore properly denied defendant’s
motion to suppress.
C. Merger
         This case raises a number of complicated merger
issues under ORS 161.067 that we will address in sequence.
Because it will take a while to walk through the analysis,
the upshot is that the guilty verdicts on the promoting prostitution charges in Counts 2, 3, 14, 15, and 16 must merge.
That conclusion flows from our subsidiary determinations
that (1) under State v. Fujimoto, 

, 

 (2014), all of those counts involve the same criminal episode for purposes of ORS 161.067(2); (2) under the analytic
framework established in State v. Barrett, 

, 

 (2000), each of those counts involves the same statutory
provision for purposes of ORS 161.067(1); (3) each of those
counts involves a single victim (the public) for purposes of
ORS 161.067(2); and (4) finally, on this particular record,
none of Counts 2, 3, 14, and 15, is separated by a “sufficient
pause” from Count 16, so as to allow for entry of separate
convictions for purposes of ORS 161.067(3).
         We start by clearing the table of the merger issues
that Ramos has taken out of contention. In his second, third,
fourth, and fifth assignments of error, defendant contends
that the trial court erroneously failed to merge various subsets of his convictions. Our conclusion that the convictions
on Counts 1, 4, 5, and 6 must be reversed because the guilty
verdicts were not unanimous means we need not reach the
third assignment of error, which urges that the guilty verdicts on Counts 5 and 6 must merge, and the fifth assignment of error, which asserts that the guilty verdicts on
Counts 1 and 4 must merge. Those particular merger issues
may not arise on remand.
418                                             State v. Paye

         The resolution of defendant’s remaining assignments of error requires us to answer four questions: (1) Are
all the counts based on the same criminal episode for purposes of ORS 161.067? (2) If so, do they involve violations
of “two or more statutory provisions” for purposes of ORS
161.067(1), or do they involve a single statutory provision?
(3) If a single statutory provision, did the offenses involve
separate victims for purposes of ORS 161.067(2)? (4) If the
same criminal episode, a single statutory provision and a
single victim, were the counts separated by a “sufficient
pause” for purposes of ORS 161.067(3)?
         Criminal episode. The first question we must
address is whether all the counts involved the same criminal episode. Relying on the analysis in Fujimoto, defendant
argues that all counts of promoting prostitution involve the
same “criminal episode” or, at least, the same “criminal
episode” as Count 16, which the state predicated on all of
defendant’s alleged prostitution-related activities, including those underlying the other charges. The state does not
address Fujimoto, but argues that, notwithstanding the way
Count 16 was charged and tried, ORS 161.067(3) allows for
the entry of separate convictions because it is inferable that
the violations underlying the other counts were separated
by a sufficient pause from the violation underlying the conviction on Count 16.
          As mentioned, Counts 2 and 3 were based on the
jury’s finding that defendant promoted prostitution in a particular incident involving S. Count 14 was based on the jury’s
finding that defendant promoted prostitution in a particular incident involving H. Count 15 was based on the jury’s
finding that defendant promoted prostitution in a particular
incident involving N. Count 16 was based on the jury’s finding that from April 1, 2014 to September 30, 2015—the time
period in which the specific acts identified above occurred—
defendant promoted prostitution by “own[ing], control[ling],
manag[ing], supervis[ing] and otherwise maintain[ing] a
prostitution enterprise.” The state’s theory on Count 16 was
that, through all of his conduct, including the specific incidents of promoting involving S, H, and N, defendant promoted prostitution by maintaining a prostitution enterprise.
The prosecutor argued in closing:
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      “And then Count 16. Who was managing these women?
   Who were these women paying? Who were these women
   doing it for? Who expected money out of these women? Who
   was organizing these women? The defendant[.]”
The prosecutor then repeated the same theory in rebuttal:
      “And then, of course, owned, controlled, managed,
   or supervised. [Defendant] supervised multiple women.
   You heard there’s four of them to engage in prostitution
   activity.”
         First, contrary to the state’s argument, under
Fujimoto, Counts 2, 3, 14, 15, and 16 all involve the same
“criminal episode” for purposes of ORS 161.067 in view of how
the state charged and tried Count 16. At issue in Fujimoto
was whether multiple discrete counts of first-degree theft
involved the same “criminal episode” as a count of organized
retail theft that, as tried to the jury, encompassed the conduct underlying the discrete counts. 

.
We rejected the state’s argument that the discrete nature
of the first-degree theft counts meant that they involved a
different criminal episode from the organized retail theft
count:
       “As best we understand it, the state reasons that,
   because the nine counts of first-degree theft do not merge
   with each other, they should not merge into the organized
   retail theft. The state asserts that the organized retail
   theft could not have involved the ‘same conduct or criminal
   episode’ as the first-degree thefts, given that each of the
   first-degree thefts was distinct from the others. The trial
   court, however, specifically noted that ‘it is clear that all
   of the evidence in Counts 2 through 10 [first-degree theft]
   was part of Count 1 [organized retail theft],’ and the state
   does not dispute that. That is, all of the first-degree thefts
   alleged in Counts 2 through 10 occurred within the temporal scope of the commission of the organized retail theft,
   and … involved proof of the same elements. Nothing in
   ORS 161.067(1) or the case law interpreting it suggests
   that, because one of the offenses—the organized retail
   theft—occurred over a longer period of time than others,
   merger is precluded.”

 (emphasis and brackets in original; footnote
omitted).
420                                              State v. Paye

         Here, as with the first-degree theft counts in
Fujimoto, Counts 2, 3, 14, and 15 each involve discrete acts
of promoting prostitution that would not merge with each
other. But Count 16, like the organized retail theft count
in Fujimoto, covered the time period in which those counts
occurred and was based on the evidence underlying those
counts. The trial court expressly recognized this, stating
that Count 16 was “part of the continuing course of conduct.”
That means that Counts 2, 3, 14, and 15 involve the same
criminal episode as Count 16, even if, as was the case in
Fujimoto, Counts 2, 3, 14, and 15 might not, on their own,
involve the same conduct or criminal episode as each other.
          Accordingly, the verdicts on Counts 2, 3, 14, 15, and
16 merge by default unless one of the ORS 161.067 exceptions
to merger applies. State v. Gensitskiy, 

, 281 n 5,

 (2019) (“But it is important to bear in mind that,
under ORS 161.067, merger is the default result; statutory
violations based on the same conduct or criminal episode
merge unless the circumstances described in ORS 161.067
exist.”). Only if the record allows for the conclusion that one
of the three subsections of ORS 161.067 bars merger, then
may the court enter separate convictions based on separate
guilty verdicts pertaining to the same conduct or criminal
episode. 

 We consider, then, whether any of those three
subsections preclude the merger that otherwise must happen by default.
        ORS 161.067(1). ORS 161.067(1), which is what we
understand the trial court to have relied on to enter separate convictions on the counts of promoting prostitution,
authorizes the entry of separate convictions when the same
criminal episode violates separate statutory provisions, and
each statutory provision requires proof of an element the
other does not. ORS 161.067(1).
         Defendant acknowledges that, in State v. Wallock/
Hara, 

, 

 (1991), on which
the trial court relied, we held that the individual paragraphs of ORS 167.012(1) “are separate statutory ‘provisions’
for purposes of ORS 161.067(1),” such that guilty verdicts
based on separate paragraphs of the statute did not merge.
But, defendant asserts, nine years after we decided Wallock,
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the Supreme Court decided Barrett. In that case, the court
explained how to determine whether two parts of the same
statute qualify as “two or more statutory provisions” for purposes of ORS 161.067(1). Barrett, 

. Defendant
points out that we did not employ that analysis in Wallock,
and that the Supreme Court in Barrett expressly repudiated
the analytic approach that we did take in Wallock, and he
urges us to apply Barrett’s approach here to determine if
ORS 161.067(1) precludes merger of guilty verdicts based on
jury findings that the same criminal episode violated two or
more of the four paragraphs of ORS 167.012. In defendant’s
view, under the analysis in Barrett, ORS 161.067(1) does not
preclude merger.
         In the state’s view, we should continue to adhere
to Wallock. The state argues in the alternative that, even
if defendant is correct that Barrett has displaced Wallock,
under the analysis in Barrett, the distinct paragraphs of
ORS 167.012(1) constitute separate statutory provisions,
each of which undisputedly requires proof of an element
that the other does not, such that ORS 161.067 bars merger.
          Since the time we decided Wallock, the Oregon
Supreme Court has spoken extensively on merger law in a
way that constrains any precedential value that Wallock may
have. As we explain, we conclude that, under the analysis
we must apply after Barrett and subsequent cases following
it, the separate paragraphs of ORS 167.012(1) do not qualify
as “two or more statutory provisions” for purposes of ORS
161.067(1), contrary to the conclusion in Wallock. Under the
correct analysis, the paragraphs of ORS 167.012(1) are the
same statutory provision for purposes of ORS 161.067(1). As
a consequence, guilty verdicts based on findings that the
same criminal conduct or episode violates distinct paragraphs of ORS 167.012 must merge, unless some other provision of ORS 161.067 operates to preclude merger.
         In Wallock, the only question we asked and answered
was whether the separate sections of ORS 167.012 required
proof of “at least one element not involved in the others.” 

. Based on our conclusion that they did,
we determined that ORS 161.067(1) barred merger of guilty
verdicts finding that the same conduct or criminal episode
422                                             State v. Paye

violated distinct sections of ORS 167.012. 

 What we did
not do, however, is conduct the antecedent inquiry that subsequent Supreme Court cases require: whether the separate
sections of ORS 167.012 constitute “two or more statutory
provisions” or “separate statutory provisions” within the
meaning of ORS 161.067(1). Although we called the distinct
sections of ORS 167.012 “separate statutory provisions” in
Wallock, we did so solely upon determining that each section required proof of an element that the other did not, as
typically was our approach before Barrett. See, e.g., State v.
Burnell, 

, 

 (1994); see
also Bumgarner v. Nooth, 

, 

(2012) (explaining how Barrett altered and clarified analysis
of merger questions under ORS 161.067(1)).
        In other words, Wallock undertook only half of the
proper inquiry. Under Barrett, determining whether ORS
161.067(1) precludes merger entails two distinct steps:
(1) whether the guilty verdicts in question are based on “two
or more statutory provisions,” and (2) if so, whether each of
those provisions requires proof of an element the other does
not. Barrett, 

 (stating that the Court of Appeals’
practice at the time—examining just whether distinct sections required proof of elements that the others did not—
incorrectly omitted the first step in the analysis). For that
reason, we cannot rely on our conclusion in Wallock to decide
this case but must conduct the inquiry that we omitted in
that case.
          “Whether two statutes (or two sections, subsections,
or paragraphs of a statute) are ‘separate statutory provisions’ for the purposes of ORS 161.067 depends on whether
the legislature intended to create two crimes as opposed
to, for example, two ways of committing the same crime.”
Gensitskiy, 

; State v. Jenkins, 

, 

 (2016), rev den, 

 (2017).
“[O]ur task is to determine whether the legislature’s actions
were directed at a ‘broad, unitary risk or harm that could be
triggered by any of several legally interchangeable means’
or at ‘distinct and particularized risks or harms.’ ” Jenkins,

 (quoting State v. Crawford, 

, 

 (2007), rev den, 

 (2008)). We
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 (2021)                               423

do so by examining the statute’s “structure, text, context,
and legislative history.” 

         Here, the structure, text, and legislative history
of ORS 167.012 indicate that the different sections of the
promoting prostitution statute target the same harm and
define different ways of committing the same crime.
         First, the structure of the statute indicates that the
different provisions of ORS 167.012 set forth different ways
of committing a single crime. As we explained in Jenkins,
when a statute is structured with “a section that names the
crime, followed by paragraphs that define alternative ways
of committing the crime,” that “indicates that the legislature intended to define one crime.” 

. That
is exactly how ORS 167.012 is structured, with a general
provision naming the crime followed by a list of ways the
crime can be committed:
      “(1) A person commits the crime of promoting prostitution if, with intent to promote prostitution, the person
   knowingly:
      “(a) Owns, controls, manages, supervises or otherwise maintains a place of prostitution or a prostitution
   enterprise;
       “(b) Induces or causes a person to engage in prostitution or to remain in a place of prostitution;
       “(c) Receives or agrees to receive money, goods, property, services or something else of value, other than as a
   prostitute being compensated for personally rendered prostitution services, pursuant to an agreement or understanding that the money, goods, property, services or something
   else of value is derived from a prostitution activity; or
      “(d) Engages in any conduct that institutes, aids or
   facilitates an act or enterprise of prostitution.
      “(2)   Promoting prostitution is a Class C felony.”
ORS 167.012.
        One additional structural feature points in the
same direction. In ORS 167.012(1)(a) to (c), the legislature
described fairly specific ways in which a person could commit the crime of promoting prostitution. Then, in the final
424                                             State v. Paye

paragraph, ORS 167.012(1)(d), the legislature supplied what
is, as a textual matter, a broad catch-all provision, prohibiting “any conduct” that furthers (that is, “institutes, aids
or facilitates”) “an act or enterprise of prostitution.” That
structural aspect—some relatively specifically defined ways
of how the crime can be committed, followed by a broader,
catch-all type provision—suggests that the legislature was
simply attempting to describe the range of alternative ways
the crime of promoting prostitution could be committed, and
was not attempting to define separate crimes.
         Text indicates the same thing as structure. It would
be difficult to conclude that the paragraphs of ORS 167.012(1)
target “distinct and particularized risks or harms.” Jenkins,

 (internal quotation marks omitted). Each
provision appears to be aimed at the generalized harm of
being on the business side of a prostitution operation or
arrangement, and the provisions overlap with each other in
terms of the conduct that they address. For example, at least
some (if not all) conduct that violates ORS 167.012(1)(a),
which prohibits, among other things, “maintain[ing] … a
prostitution enterprise,” would likely also violate the catch-all provision in ORS 167.012(1)(d), prohibiting “any conduct
that institutes, aids or facilitates an act or enterprise of
prostitution.” In other words, the separate paragraphs of
ORS 167.012(1) are not very distinct from one another.
         Finally, legislative history also persuades us that
the legislature’s intention in enacting ORS 167.012 was to
define different ways the same crime could be committed,
rather than to define separate crimes. The statute was
enacted as part of the comprehensive revision to the criminal code in 1971. The commentary to section 251, the provision that became ORS 167.012, states, “Section 251 creates
a single comprehensive offense covering conduct characteristic of prostitution carried on as a commercial enterprise.” Commentary to Criminal Law Revision Commission
Proposed Oregon Criminal Code, Final Draft and Report
§ 251, 241 (July 1970) (emphasis added). As defendant correctly notes, the commentary then “explains that the offense
‘is designed to reach the typical “panderer,” “pimp” and
“madam” ’ and describes how each paragraph accomplishes
that single goal.” (Quoting id.) The commentary further
Cite as 

 (2021)                            425

indicates that the legislature sought to ensure that all such
conduct received similar treatment for sentencing purposes.
See id. at 241-42.
         Given that expression of legislative intention to
create a “single” offense, we conclude that that is what the
legislature did in enacting ORS 167.012. The separate paragraphs of the statute do not define separate crimes but,
instead, set forth alternative means of committing the same
crime. They are, therefore, not separate statutory provisions for purposes of ORS 161.067(1), and that part of ORS
161.067 does not preclude merger here. Wallock, which failed
to conduct the analysis required by Barrett, does not dictate
a different result.
         ORS 161.067(2). Next is ORS 161.067(2). It precludes
merger if defendant’s offenses involve “two or more victims”:
“When the same conduct or criminal episode, though violating only one statutory provision involves two or more
victims, there are as many separately punishable offenses
as there are victims.” ORS 161.067(2). The question, consequently, is whether Counts 2, 3, 14, 15, and 16 involve two or
more victims. The parties disagree on this point.
         Defendant argues that the victim of the offense of
promoting prostitution is the public, such that those counts
all have the same victim. Defendant notes that the Criminal
Law Commission proposed the statute in a section called
“Offenses Against Public Health and Decency,” something
that, in defendant’s view, signals an intention that the victim was the public. Defendant also points to commentary
that suggests that the harm targeted by the offense was
harm to society caused by commercial prostitution operations, not harm to persons who voluntarily choose to engage
in prostitution.
         The state argues that, on the counts involving the
promotion of prostitution by an individually named woman,
the individually named woman is the victim. In support
of its argument, the state cites a number of other cases in
which we have referred to the “prostituted individual” as the
victim of the offense of promoting prostitution, although the
state appears to recognize that we have never decided the
question. The state contends that that “longstanding view”
426                                               State v. Paye

is correct and should be imported to the analysis under
ORS 161.067(2). The state also cites cases from Washington
and Nevada in which the courts of those states have viewed
the persons engaging in prostitution as the victims of the
offense of promoting prostitution.
        For purposes of ORS 161.067(2), we “determine[ ]
who qualifies as a ‘victim’ by interpreting the substantive
statute defining the relevant crime.” State v. Hamilton, 

, 

 (2010). As we explained in State v.
Moncada, 

, 

 (2011), rev den,

 (2012):
   “Where the statute defining a crime does not expressly
   identify the person who qualifies as a ‘victim,’ the court
   examines the statute to identify the gravamen of the
   crime and determine the class of persons whom the legislature intended to directly protect by way of the criminal
   proscription.”
In particular, we look to the harm targeted by the substantive criminal offense to identify who, in the view of the legislature, would qualify as a victim. Jenkins, 

. Where the harm targeted by the offense is to the
public, rather than to an individual, we have held that the
victim of the offense is the public (or the state). See 

 (concluding that the public, with its interest in the administration of justice, was the victim of the crime of witness tampering, not the individual witnesses).
         Here, our consideration of the text, context, and,
particularly, the legislative history of ORS 167.012 and the
simultaneously enacted statutes targeting prostitution persuades us that the victim of the crime of promoting prostitution is the public at large.
         First, nothing in the text of the statute suggests
that the legislature viewed any particular individual as
being harmed by the promoting activities that are prohibited. Rather, the text targets the range of ways a person
can participate in the commercial sex industry, prohibiting
those types of commercial activities, without giving any
indication that the legislature viewed the harm occasioned
by those activities to be a harm suffered by any particular
participant in them.
Cite as 

 (2021)                               427

         Second, the context indicates that the legislature
would not likely view any adult voluntarily engaging in
prostitution as a victim. When it enacted ORS 167.012,
the legislature also enacted ORS 167.007, which generally
criminalizes sex-for-money transactions, and ORS 167.017,
which criminalizes the conduct of compelling prostitution.
By generally criminalizing sex-for-money transactions, the
legislature suggested that it did not generally view voluntary participants in such transactions as crime victims, it
viewed them as crime perpetrators. But by criminalizing
compelling prostitution, the legislature indicated a view
that, when compulsion plays a role in inducing a person to
engage in sex-for-money transactions, the person compelled
does suffer a harm rendering them a victim. In other words,
context suggests that the legislature did not generally view
persons engaged in prostitution and the related business
aspects of it as victims unless participation was compelled.
That indicates that the victim of the crime of promoting is
the public, because that offense does not contain an element
of compulsion.
         The legislative history of the prostitution provisions bears this out. The commentary to the provision that
ultimately became the general prohibition on prostitution,
ORS 167.007, indicates that alternatives to criminalization
were considered but none were found to be “socially acceptable”: “The Commission is not convinced that the advocates
of tolerated prostitution have formulated socially acceptable
alternatives to prohibitory legislation. The proposed draft,
therefore, is designed to maintain the existing pattern of
the law in the United States.” Commentary § 250 at 240.
That suggests that the legislature’s general concern was the
harm to society, not the harm to individual participants voluntarily engaging in prostitution activities. The commentary to the provision that became ORS 167.017, which prohibits compelling prostitution, reflects a similar view that,
absent compulsion, a participant in prostitution activity is
not someone that the legislature perceived as a victim of
that activity. That commentary explains:
      “Section 252 particularizes three forms of promoting
   prostitution considered aggravating factors serving to
   increase the seriousness of the offense. It covers coercive
428                                                State v. Paye

  conduct characterized by force or duress, conduct that
  exploits the immature and that which victimizes a dependent person.
      “Paragraph (a) of subsection (1) reflects the view that
  a prostitute’s voluntary participation is a factor to be considered in measuring the culpability of the ‘promoter.’ The
  social and psychological pressures that draw a person into
  a life of prostitution are complex and varied. While penal
  legislation may never provide a fully effective deterrent to
  voluntary prostitution, the law should continue to apply
  forceful deterrents against the use of coercion.”
Commentary § 252 at 242.
         In view of the foregoing, we conclude that the harm
targeted by ORS 167.012 is the social harm occasioned by
the business of prostitution, not any harm suffered by individual participants in that business. That means each count
of promoting prostitution involves the same victim—the
public. Here, then, ORS 161.067(2) does not preclude merger.
       ORS 161.067(3). The remaining question is whether
ORS 161.067(3) precludes merger. It provides that 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.”
ORS 161.067(3). As we have explained, “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). The state
bears the burden of proving that the requisite sufficient
pause is present. State v. Barton, 

, 

 (2020).
Cite as 

 (2021)                            429

         In this case, in light of how the state charged and
tried the case, the state did not meet that burden. Absent
Count 16, and the state’s decision to charge and try that
count as one ongoing criminal episode, we would conclude
that the record would support the entry of separate convictions on Count 2, Count 3, Count 14, and Count 15. Each of
those counts involved distinct incidents separated in time
and location.
         But the fact that guilty verdicts on certain counts
do not merge with each other does not end the analysis
where, as here, each one of those verdicts merges with the
verdict on another count. Cf. Gensitskiy, 

(holding that, although guilty verdicts on individual identify theft counts did not merge with each other, each merged
into guilty verdict on count of aggravated identity theft for
single conviction; rejecting as contrary to the defendant’s
plea agreement state’s argument that it should be permitted on remand to dismiss count of aggravated identity theft
to allow for entry of multiple convictions on separate identity thefts); Fujimoto, 

 (holding that,
although individual guilty verdicts on counts of first-degree
theft did not merge with each other, they each merged with
guilty verdict on count of organized retail theft for single
conviction). In this case, the conduct underlying Counts 2,
3, 14, and 15 cannot be separated from the conduct underlying Count 16 by a sufficient pause, or any pause. Count 16,
as the state charged it and then presented it to the jury,
was based on all of defendant’s prostitution-related conduct,
including that underlying Counts 2, 3, 14, and 15. As the
trial court recognized, Count 16 was based on a continuing
course of conduct. On this record, there is simply no way to
meaningfully distinguish the conduct underlying Counts 2,
3, 14, and 15 from that underlying Count 16. Thus, ORS
161.067(3) does not preclude merger.
          In short, as this case was charged and tried, Counts
2, 3, 14, 15, and 16 each involve the same criminal episode,
and none of the provisions of ORS 161.067 preclude the
guilty verdicts on Counts 2, 3, 14, and 15 from merging with
the verdict on Count 16. Therefore, the guilty verdicts on
Counts 2, 3, 14, and 15 each must merge with the guilty
verdict on Count 16.
430                                            State v. Paye

D. Remaining Issues
         In his sixth, seventh, and eighth assignments of
error, defendant raises challenges to his sentence, contending that the trial court erred in reconstituting his criminal
history score and imposing a compensatory fine. Our reversal of four of his convictions, and our conclusion that the
guilty verdicts on the remaining counts must merge, obviate
the need to address those questions, which may not recur on
remand.
        Convictions on Counts 1, 4, 5, and 6 reversed and
remanded; reversed and remanded to address merger in a
manner consistent with this opinion; remanded for resentencing; otherwise affirmed.