301
This is a nonprecedential memorandum opinion
pursuant to ORAP 10.30 and may not be cited
except as provided in ORAP 10.30(1).
Submitted January 4; convictions on Counts 1 and 5 reversed and remanded
for entry of judgment of conviction for one count of second-degree sexual abuse,
convictions on Counts 2 and 4 reversed and remanded for entry of judgment of
conviction for one count of second-degree sexual abuse, convictions on Counts 3
and 6 reversed and remanded for entry of judgment of conviction for one count
of second-degree sexual abuse, remanded for resentencing, otherwise affirmed
February 15, 2023
STATE OF OREGON,
Plaintiff-Respondent,
v.
LISA MARIE DEFLURI,
Defendant-Appellant.
Lane County Circuit Court
20CR68023; A176093
Charles D. Carlson, Judge.
Laura E. Coffin and Luvaas Cobb filed the brief for
appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before Mooney, Presiding Judge, and Pagán, Judge, and
Armstrong, Senior Judge.
MOONEY, P. J.
Convictions on Counts 1 and 5 reversed and remanded
for entry of judgment of conviction for one count of second-degree sexual abuse; convictions on Counts 2 and 4 reversed
and remanded for entry of judgment of conviction for one
count of second-degree sexual abuse; convictions on Counts
3 and 6 reversed and remanded for entry of judgment of
conviction for one count of second-degree sexual abuse;
remanded for resentencing; otherwise affirmed.
302 State v. Defluri
MOONEY, P. J.
Defendant was convicted of 11 counts of second-degree sexual abuse, ORS 163.425 (2018), amended by Or
Laws 2021, ch 403, § 1, based on her guilty plea, and the
trial court sentenced her to a total of 86 months’ incarceration. She appeals, raising eight assignments of error. In
her first three assignments, defendant contends that the
trial court erred in failing to merge certain counts, and the
state concedes those errors. As explained below, we agree
with the parties that the trial court erred in not merging
the counts and, consequently, we remand for resentencing.
ORS 138.257(4)(a)(A). Defendant’s remaining assignments
of error challenge various aspects of her sentence as plain
error.1 Because the case must be remanded for resentencing, we need not address those unpreserved assignments.
Rather, defendant can raise those issues on remand if she so
chooses (and they arise), allowing the trial court to consider
and decide them in the first instance.
The pertinent background facts are few and
undisputed. The charges in this case arose out of a longterm relationship between defendant, a middle- and highschool teacher, and A, who was 16 years old at the time
of the crimes. The relationship eventually became sexual.
Defendant was a family friend of A; she was also A’s basketball coach and teacher. According to the investigating detective, the amount of evidence that was discovered reflected
an “obsession” between defendant and A. Defendant was
ultimately charged with 11 counts of second-degree sexual
abuse, and she pleaded guilty to all counts, without plea concessions from the state. After a sentencing hearing, she was
sentenced to a total of 86 months’ incarceration. Except as
discussed immediately below in connection with defendant’s
1
In her fourth through seventh assignments of error, defendant challenges
the trial court’s grid block categorization on certain counts, arguing that the
court plainly erred when it reconstituted defendant’s criminal history score
as it imposed sentence, when, in defendant’s view, all 11 counts comprised one
criminal episode. In her eighth assignment, defendant asserts that her total
86-month sentence violates by 50 months the rule that, when imposing multiple
sentences consecutively, a trial court cannot impose a total incarceration term
that is greater than twice the maximum presumptive incarceration term for the
primary sentence, except by departure. See OAR 213-012-0020(2)(b) (colloquially
known as the “200-percent” rule).
Nonprecedential Memo Op: 324 Or App 301 (2023) 303
merger argument, the details of the individual convictions
and sentences are immaterial for purposes of this appeal.
As she did below, defendant argues on appeal that
the trial court erred under ORS 161.067(3) in not merging
several of the counts. ORS 161.067(3) provides, in part:
“When the same conduct or criminal episode violates
only one statutory provision and involves only one victim,
but nevertheless involves repeated violations of the same
statutory provision against the same victim, there are as
many separately punishable offenses as there are violations, except that each violation, to be separately punishable under this subsection, must be separated from other
such violations by a sufficient pause in the defendant’s
criminal conduct to afford the defendant an opportunity to
renounce the criminal intent.”
See also State v. Reeves, 250 Or App 294, 304,
280 P3d 994,
rev den,
352 Or 565 (2012) (generally, with respect to a single criminal episode, “criminal conduct that violates only
one statutory provision will yield only one conviction unless
the so-called ‘antimerger’ statute, ORS 161.067, operates so
as to permit the entry of multiple convictions”).
In particular, defendant contends that
• Count 5 (subjecting A to sexual contact by touching
her lips or mouth “on or about July 3, 2020”) should
have merged with Count 1 (subjecting A to sexual
contact by touching her lips or mouth “on or about
July 3, 2020”).
• Count 4 (subjecting A to sexual contact by touching
her lips or mouth “on or about July 2, 2020”) should
have merged with Count 2 (subjecting A to sexual contact by touching her breast “on or between
July 1, 2020 and September 1, 2020”).
• Count 6 (subjecting A to sexual contact by touching her lips or mouth “on or about August 1, 2020”)
should have merged with Count 3 (subjecting A
to sexual contact by touching her vagina “on or
between August 1, 2020 and September 1, 2020”).
In each instance, defendant argues that the court erred in
failing to merge the counts because the criminal conduct
304 State v. Defluri
in question was directed at the same victim and occurred
during the same date, or range of dates, with no evidence of
a sufficient pause between the acts in each set.
The state concedes that defendant is correct. On
review for legal error, State v. Campbell, 265 Or App 132,
134,
333 P3d 1220 (2014), we agree and accept the state’s
concession. See State v. Avila,
283 Or App 262,
388 P3d 383
(2016) (first-degree sexual abuse convictions for touching of
separate body parts merge where the state fails to adduce
evidence to show that the acts were separated by a sufficient
pause); see also State v. Nelson,
282 Or App 427,
386 P3d 73
(2016) (ORS 161.067(3) does not prevent merger of multiple
counts of sexual abuse that involve touching separate parts
of a victim’s body.). The trial court erred in failing to merge
Counts 1 and 5 into a single conviction for second-degree
sexual abuse, failing to merge Counts 2 and 4 into a single conviction for second-degree sexual abuse, and failing
to merge Counts 3 and 6 into a single conviction for second-degree sexual abuse.
We therefore reverse and remand those convictions
for the trial court to correct the merger errors. As noted,
because the case must be remanded for resentencing as a
result, we need not address defendant’s remaining assignments of error.
Convictions on Counts 1 and 5 reversed and
remanded for entry of judgment of conviction for one count of
second-degree sexual abuse; convictions on Counts 2 and 4
reversed and remanded for entry of judgment of conviction
for one count of second-degree sexual abuse; convictions on
Counts 3 and 6 reversed and remanded for entry of judgment of conviction for one count of second-degree sexual
abuse; remanded for resentencing; otherwise affirmed.
