Jurisdictional judgment reversed and remanded for entry… · Decided 2021-08-18
113
Argued and submitted July 6, jurisdictional judgment reversed and remanded
for entry of a judgment reflecting adjudications for one count of first-degree
sexual abuse and one count of first-degree rape August 18, 2021
In the Matter of S. M. E.,
a Youth.
STATE OF OREGON,
Respondent,
v.
S. M. E.,
Appellant.
Washington County Circuit Court
19JU00599; A172231
Erik M Buchér, Judge.
Ginger Fitch argued the cause for appellant. Also on the
briefs was Youth, Rights & Justice.
Patricia G. Rincon, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
Before DeVore, Presiding Judge, and DeHoog, Judge, and
Mooney, Judge.
PER CURIAM
Jurisdictional judgment reversed and remanded for
entry of a judgment reflecting adjudications for one count of
first-degree sexual abuse and one count of first-degree rape.
114 State v. S. M. E.
PER CURIAM
In this juvenile delinquency case, youth appeals a
judgment adjudicating him as being within the jurisdiction
of the juvenile court for acts that, if committed by an adult,
would constitute one count of first-degree rape, ORS 163.375,
four counts of first-degree sexual abuse, ORS 163.427, one
count of second-degree sexual abuse, ORS 163.425, and
four counts of third-degree sexual abuse, ORS 163.415. He
asserts 12 assignments of error. We write only to address
youth’s merger-related assignments of error (11 and 12), and
we reject without discussion his other assignments, which
challenge the sufficiency of the evidence with regard to each
count.
With respect to merger, youth contends that the
juvenile court plainly erred by (1) not merging the third-degree sexual abuse counts (Counts 7 through 10) and the
first-degree sexual abuse counts (Counts 3 through 6) into
a single adjudication for first-degree sexual abuse and
(2) not merging the second-degree sexual abuse count (Count 2)
with the first-degree rape count (Count 1). Given how the
case was pleaded, we agree with youth on both points.
ORS 161.067, the antimerger statute, “applies to
delinquency adjudications in the same way that it does to
determinations of guilt in criminal cases.” State v. K. R. S.,
(2016), we held that the trial court erred in not merging the defendant’s guilty verdicts for first- and third-degree
sexual abuse into one conviction for first-degree sexual
abuse where there was no evidence to support a determination that each instance of sexual contact was separated by
a “sufficient pause” to afford the defendant an opportunity
to renounce his criminal intent. The same is true here. And,
youth’s second contention is borne out by State v. Benson,
(2021) (accepting the
state’s concession that the trial court plainly erred in failing to merge the defendant’s guilty verdict for second-degree
sexual abuse by sexual intercourse without consent with the
guilty verdict for first-degree rape by “forcible compulsion”).
Cite as
314 Or App 113
(2021) 115
Thus, we agree with youth that the counts should have
merged as he suggests.
We further conclude that it is appropriate to exercise our discretion to correct those errors, for reasons similar
to those expressed in State v. Ryder,
(2009)—specifically, the gravity of the error due
to the presence of additional adjudications on youth’s record
that misstate the nature and extent of his conduct; there
was no indication that youth had strategic reasons for not
objecting to the juvenile court’s failure to merge the counts;
and the burden on the judicial system to correct the judgment is minimal.
Jurisdictional judgment reversed and remanded for
entry of a judgment reflecting adjudications for one count of
first-degree sexual abuse and one count of first-degree rape.
