641
Submitted December 31, 2020; portion of judgment requiring defendant to pay
compensatory fines reversed, remanded for resentencing, otherwise affirmed
May 18, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
JOHN EDWARD MARKS,
Defendant-Appellant.
Lane County Circuit Court
201416553; A171236
510 P3d 914
In this criminal appeal, defendant contests the trial court’s determination
that certain sex crimes did not merge for the judgment and the decision to impose
compensatory fines. On appeal, defendant argues that the attempted second-degree rape count must merge with the first-degree sexual abuse count because
both counts arose from the same incident and were factually indistinguishable.
With respect to the compensatory fines, defendant argues that there was no evidence of objectively verifiable economic losses payable to the minor victim of the
sex crimes, and therefore, the fines were erroneously imposed. Held: Although
defendant was convicted of the lesser-included offense of attempted second-degree
rape on the factual theory of genital-to-genital touching, the proper analysis for
purposes of the merger statute focuses on the statutory elements defining the
crimes, not a particular defendant’s conduct. As first-degree sexual abuse and
attempted second-degree rape each require proof of an element that the other
does not, merger was not required. There was no evidence in the record to support
a conclusion that the minor victim incurred objectively verifiable economic losses;
therefore, imposition of those fines was error.
Portion of judgment requiring defendant to pay compensatory fines reversed;
remanded for resentencing; otherwise affirmed.
Charles M. Zennaché, Judge.
Frances J. Gray filed the briefs for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Patrick M. Ebbett, Assistant Attorney
General, filed the brief for respondent.
Before Mooney, Presiding Judge, and Pagán, Judge, and
DeVore, Senior Judge.
PAGÁN, J.
Portion of judgment requiring defendant to pay compensatory fines reversed; remanded for resentencing; otherwise
affirmed.
642 State v. Marks
PAGÁN, J.
Defendant was convicted, after a bench trial, of two
counts of first-degree sexual abuse, ORS 163.427(1)(a)(A)
(Counts 3 and 6), and one count of attempted second-degree
rape, ORS 163.365 and ORS 161.405 (Count 5). Defendant
raises five assignments of error on appeal, arguing that the
trial court erred by: (1) denying his motion to merge Counts
5 and 6; (2) imposing a compensatory fine on Count 3;
(3) imposing a compensatory fine on Count 6; (4) imposing a
$200 punitive fine on Count 5; and (5) designating $50,000
of defendant’s security deposit towards payment of the
fines. We write to address defendant’s arguments regarding
assignments of error one, two, and three, and, because of our
disposition on assignments two and three, we do not address
assignment five. We reject assignment of error four without discussion. For the following reasons, we affirm the trial
court’s decision denying merger, but reverse and remand the
portion of the judgment awarding compensatory fines.
The relevant procedural and factual background is
as follows. Defendant was charged with various sex crimes
occurring in 2014, three of which are at issue in this appeal.
Count 3 and Count 6 alleged first-degree sexual abuse;
Count 5 alleged second-degree rape. Before trial, defendant
moved to cause the state to elect a theory regarding Counts
5 and 6, as it appeared that the state was relying on the
same incident for both charges. In response to defendant’s
motion, the state informed the trial court that Count 6 was
a “fallback” to Count 5 because the state had alleged sexual
intercourse in Count 5 and genital-to-genital touching in
Count 6. According to the state, if the evidence did not support a finding that defendant penetrated the victim for the
purposes of the rape count, the state could still argue, as a
backup theory, that defendant made genital-to-genital contact, and the factfinder could find him guilty of the sexual
abuse count. Defendant proceeded with a bench trial and
was ultimately found guilty on Count 3 and Count 6, but
the trial court found defendant guilty of the lesser-included
offense of Count 5, attempted second-degree rape.
At sentencing, defendant argued to merge the guilty
verdicts on Counts 5 and 6, arguing that the state was
Cite as 319 Or App 641 (2022) 643
required to prove the elements of Count 6 to satisfy its burden for proving the lesser-included attempt of Count 5. The
state opposed merger, arguing that ORS 161.067 required
the court to compare the elements of Counts 5 and 6, and,
since both counts required proof of an element that the other
did not, merger was not required. The court agreed with the
state and entered separate convictions for Counts 5 and 6.
The state then asked the court to impose compensatory fines on Counts 3 and 6. The state offered no specific evidence of economic damages, but rather averred to
the court that the victim, a minor at the time of the incidents and during the trial, suffered reputational damage
as a result of defendant’s actions. The victim’s father testified that his family had “not spent a dime” as a result of
the charges, but rather suffered minimal damages related
to parking, fuel, and missing work for trial. No evidence of
those damages was provided beyond father’s testimony. The
court awarded $25,000 in compensatory fines for Count 3
but did not award a punitive fine on that count. Likewise,
the court awarded $25,000 in compensatory fines on Count 6
but did not award a punitive fine on that count. On Count 5,
the court awarded $200 in punitive fines. Although the
record is unclear on this issue, defendant argues that the
trial court allocated money deposited for his security release
towards the compensatory fines and that that money was
deposited by third parties.
Looking first at defendant’s merger assignment, we
review a trial court’s decision regarding whether two counts
should have merged for legal error. State v. Breshears, 281
Or App 552, 554,
383 P3d 345 (2016). ORS 161.067 provides,
in relevant part:
“(1) 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.”
Our courts have interpreted the statute to mean “if
one offense contains X elements, and another offense contains X + 1 elements, the former offense does not contain an
element that is not also found in the latter offense. In that
644 State v. Marks
situation, under ORS 161.067(1), there is only one separately
punishable offense.” State v. Blake, 348 Or 95, 99,
228 P3d
560 (2010) (footnote omitted).1 A court must answer three
questions when considering merger under ORS 161.067:
“(1) Did defendant engage in acts that are ‘the same conduct or criminal episode,’ (2) did defendant’s acts violate two
or more ‘statutory provisions,’ and (3) does each statutory
‘provision’ require ‘proof of an element that the others do
not.’ ” State v. Haddon,
286 Or App 191, 194,
399 P3d 458
(2017). If the answer to all three is affirmative, merger is
not required. See
id. If, however, the answer to the first two
factors is affirmative, but the answer to the third is negative, merger is required.
Id. Tracking the wording of the
statute, the analysis we apply focuses on the elements of
the crimes alleged, not the particular facts that the state
alleged to establish those elements. Breshears,
281 Or App
at 558. Defendant argues that the unique circumstances of
this case—that is, the conviction for an attempt—require us
to focus on the conduct alleged, rather than the underlying
elements. The state responds that this case is controlled by
State v. Spring,
172 Or App 508,
21 P3d 657, rev den,
332 Or
559 (2001). We agree with the state.
Defendant’s argument rests primarily on two foundations: First, defendant correctly points out that, for our
merger analysis, when dealing with a statutory provision
that provides alternate forms of committing the offense,
we focus on the charged conduct. See Haddon, 286 Or App
at 195. Thus, defendant argues, the state elected to charge
defendant with genital-to-genital touching for the sexual
abuse charge in Count 6, and we must use that theory for
our analysis. Second, the defendant argues that, when we
analyze the elements for an attempt under ORS 161.405(1),
we look at the conduct of the defendant to determine the
elements. Defendant argues this is because ORS 161.405(1)
1
Stated somewhat differently, to avoid merger under ORS 161.067(1), there
must be an element of each crime of conviction that is not present in another count
that could be merged. In the noted example, both offenses contained “X” elements
and the only noncommon element was the “+1” element in the second offense,
which is why those two counts must merge. A formulaic description of when ORS
161.067(1) would not require merger would include where one offense included
X + A elements and the second offense included X + B elements. It is the +A and
+B elements that are dispositive to the merger analysis for ORS 161.067(1).
Cite as 319 Or App 641 (2022) 645
states that a person is guilty of an attempt when “the person
intentionally engages in conduct which constitutes a substantial step toward commission of the crime.” (Emphasis
added.) But defendant’s argument, however artfully crafted,
leads to the same elemental conclusion even if we accept
it and apply it to this case. That is, even if we accept that
the state chose to charge defendant with genital-to-genital
touching for the sexual abuse count, and the state relied
on genital-to-genital touching to establish the attempted
rape count, and we used those charging decisions to assist
our analysis, the two counts would still require proof of an
element that the other does not: taking a substantial step
towards committing rape in one, sexual contact (with a sexual purpose) in the other. That the state chose to prove the
substantial step element with the same conduct as used for
the sexual abuse count does not lead to the conclusion that
the state was required to do so.
More specifically, second-degree rape, as defined
by ORS 163.365 and ORS 163.305(6), has the following elements: (1) a person; (2) has sexual intercourse, meaning
actual penetration; (3) with another person; (4) when that
other person is under 14 years of age.2 In order to be convicted of attempted second-degree rape, defendant must have
intentionally engaged in conduct constituting a substantial
step toward having sexual intercourse with a person under
14 years of age. ORS 161.405(1); ORS 163.365. The elements
of first-degree sexual abuse, as alleged in this case were:
(1) a person; (2) subjects another person; (3) to sexual contact,
which means touching of the sexual or other intimate parts
for the purpose of arousing or gratifying the sexual desire of
either party; (4) while that other person is less than 14 years
of age.3 ORS 163.427(1)(a)(A); ORS 163.305(5). We have previously addressed the comparison between the elements of
rape and sexual abuse under ORS 161.067, and we concluded
that the different elements—specifically the sexual purpose
2
The definitional provision for sexual offenses, ORS 163.305, has been
amended since defendant committed the offenses. However, the relevant definitions for “sexual contact” and “sexual intercourse” are identical to those applicable at the time of the offenses, thus we refer to the present version.
3
The statute defining first-degree sexual abuse, ORS 163.427, was amended
after defendant’s conduct; however, that amendment is not material to our
analysis, and for convenience, we refer to the present version of the statute.
646 State v. Marks
portion of sexual abuse and the intercourse element of
rape—sufficiently distinguished the two charges such that
merger was not required under ORS 161.067. Spring, 172
Or App at 514 (“Rape requires sexual intercourse, whereas
sexual abuse does not. Conversely, sexual abuse requires
sexual contact, which requires touching the sexual or other
intimate parts of another person for the purpose of arousing
or gratifying the sexual desire of either party, whereas rape
does not.” (Emphasis in original.)); see also State v. O’Hara,
152 Or App 765, 768,
955 P2d 313 (1998) (concluding that
attempted first-degree assault and second-degree assault
did not merge under ORS 161.067(1)). Nothing in the particulars of this case, even using the charging decisions of the
state, alters that final analysis. Thus, we conclude that the
trial court correctly found the two convictions, while arising
out of the same episode, and while involving two statutory
violations, each required proof of an element the other does
not, and merger was not required under ORS 161.067.
Turning to the fines, we review the trial court’s decision whether to impose a compensatory fine for legal error.
State v. Alonso, 284 Or App 512, 515,
393 P3d 256 (2017).
Defendant argues that the trial court erred when it imposed
compensatory fines in the absence of evidence of economic
damages.4 Under ORS 161.645 and ORS 137.101, for a court
to award compensatory fines, the court must engage in a
two-step, layered analysis that includes a consideration of
the ability of the defendant to pay and the extent to which
victims incurred economic losses as a result of the criminal
activities. State v. Moreno-Hernandez,
365 Or 175, 181,
442
P3d 1092 (2019). In order for loss of reputation to be considered “economic damages,” the damages must be objectively
verifiable. See ORS 137.103(2); ORS 31.705(2)(a). Here, the
state offered no evidence of economic damages, but rather
simply stated to the trial court that the victim had suffered
an abstract harm based on loss of reputation. The victim’s
father testified that they had “not spent a dime” in relation
to the matter except for parking, fuel, and missing work. In
the absence of any proof that the victim suffered “objectively
4
Defendant also assigned error to the court’s imposition of a compensatory
fine without having first imposed a punitive fine under ORS 161.625(1), but that
argument was not preserved below.
Cite as 319 Or App 641 (2022) 647
verifiable” damages as a result of the alleged loss to reputation, it was error for the trial court to award compensatory
damages. See Moreno-Hernandez,
365 Or at 189. Following
the analysis in Moreno-Hernandez, the appropriate remedy
is to reverse that portion of the judgment regarding compensatory fines and remand for resentencing.
Because we reverse and remand for resentencing,
we need not address defendant’s argument regarding the
allocation of defendant’s security deposit towards those
fines.
Portion of judgment requiring defendant to pay
compensatory fines reversed; remanded for resentencing;
otherwise affirmed.
