State v. Miles

                                       410

 Argued and submitted October 4, 2022, conviction on Count 13 reversed and
 remanded for entry of conviction for second-degree kidnapping; remanded for
               resentencing, otherwise affirmed June 14, 2023


                        STATE OF OREGON,
                         Plaintiff-Respondent,
                                   v.
                       COSMO LUEY MILES,
                        aka Cosmo Luey Seal,
                        Defendant-Appellant.
                     Marion County Circuit Court
                        19CR56492; A173923
                                   

    Defendant appeals multiple convictions for serious sex crimes and other
crimes including kidnapping. Defendant argues, among other things, that the
trial court erred by convicting him of two counts of first-degree kidnapping and
plainly erred by convicting him of second-degree assault. Defendant also challenges his sentence. Held: Regarding the kidnapping convictions, there was sufficient evidence to support the asportation and purpose elements of the crimes, but
the trial court plainly erred by convicting defendant of first-degree kidnapping
on Count 13 because the victim was not under 12 years of age. Regarding the conviction for second-degree assault, although the trial court plainly erred by failing
to consider whether defendant was at least criminally negligent of the risk of
causing serious physical injury when he tackled the victim, the Court of Appeals
declined to exercise its discretion to correct the error because it was harmless.
Finally, any alleged error during sentencing can be addressed on remand.
    Conviction on Count 13 reversed and remanded for entry of conviction for
second-degree kidnapping; remanded for resentencing; otherwise affirmed.



    Susan M. Tripp, Judge.
   Kristin A. Carveth, 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 briefs were Ellen F.
Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Shorr, Presiding Judge, and Mooney, Judge, and
Pagán, Judge.
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 (2023)                        411

  PAGÁN, J.
   Conviction on Count 13 reversed and remanded for entry
of conviction for second-degree kidnapping; remanded for
resentencing; otherwise affirmed.
412                                             State v. Miles

        PAGÁN, J.
         In this criminal appeal, defendant raises numerous
challenges to his multiple convictions for serious sex crimes
and various related crimes including kidnapping, as well
as the decades-long sentence imposed for those convictions.
In two assignments of error, defendant challenges the trial
court’s denial of a motion for judgment of acquittal (MJOA)
for two separate counts of first-degree kidnapping. In a
supplemental brief, defendant argues that the trial court
plainly erred in convicting him on one of the kidnapping
counts, because it did not constitute first-degree kidnapping as charged. As explained below, we reject defendant’s
arguments regarding the MJOA, but we accept the state’s
concession that evidence regarding one of the kidnapping
counts was not sufficient to support a conviction for first-degree kidnapping but was sufficient to support a conviction
for second-degree kidnapping. In a second supplemental
brief, defendant contests his conviction for second-degree
assault; however, we decline to exercise our discretion to correct any plain error. Finally, defendant claims that the trial
court erred in sentencing him when it used multiple major
felony sex crimes committed in the same criminal episode
as a basis to sentence him under the repeat major felony
sex offender statute. That alleged error can be addressed on
remand for resentencing. We therefore reverse and remand
a single count of first-degree kidnapping for entry of a judgment of second-degree kidnapping, remand for resentencing, and otherwise affirm.
                         I.   FACTS
         As the majority of this case involves analysis of the
trial court’s decision to deny defendant’s MJOA, we state
the facts in accordance with the standard of review for such
appeals. In our review of the denial of an MJOA, we view
the facts in the light most favorable to the state to determine whether a rational trier of fact could find each element
of the crime beyond a reasonable doubt. State v. Eastman,

, 

 (2016), rev den, 

 (2017).
        Over a period of seven hours, defendant physically
and sexually assaulted the victim, C, in her home. Defendant
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met C while defendant was incarcerated in the Oregon State
Penitentiary. C worked at the prison. After defendant was
released in May 2019, they began a relationship. Defendant
lived and worked in Eugene but would stay with C at her
home in Salem each weekend.
        In late August 2019, defendant was staying with C
and went to bed early. C came to bed later, around 1:00 a.m.,
and accidentally woke defendant, who then went downstairs
to smoke a cigarette. Defendant came back to the bedroom,
and after a brief verbal exchange, he jumped on C’s back
as she laid on the bed, put his arm around her neck, and
choked her. They both fell to the floor and defendant put his
hands around C’s neck and choked her again. C believed she
was going to die.
         C reached for a knife that she had hidden under
the mattress, but defendant grabbed the knife himself.
The knife “never left his hand after that.” Defendant told
C to get back on the bed, and stabbed the area around C’s
head, as well as artwork hanging on the wall above the bed.
Defendant held the knife to C’s head and also to her vagina,
and he told her that if she “screamed or anything, he was
going to cut [her] from the inside out or something along
those lines.”
        Defendant handcuffed C with two sets of handcuffs
that C had in her room. He then told her to put her vagina on
his mouth. After that, defendant raped C, while holding the
knife the entire time. C did not tell defendant “no” because
she was “terrified for [her] life.”
         Defendant brought C downstairs, naked and handcuffed, to get some cigarettes. They went into the garage to
get the cigarettes and then went back upstairs where defendant smoked them.
         Defendant tried to rape C again, but he could not
achieve an erection. Defendant took C downstairs again so
that he could take an injectable erectile dysfunction medication that he kept in the refrigerator. C did not go willingly;
she was “tied up,” “bloody,” “hurt,” and “scared.” C asked
defendant to let her go, but he refused. C decided to “make
a run for it out the front door” but defendant tackled her. C’s
414                                             State v. Miles

wrists were still handcuffed, and she could not catch herself as she fell, so she fell on her knees. C heard “a big pop”
and thought her knee was broken. Defendant strangled C
until she lost consciousness, though she “was not sure for
how long.” When she awoke, defendant was coming in from
the garage with a rope. Because the handcuffs broke when C
fell, defendant replaced them with the rope, tying her hands
behind her back and securing a towel in her mouth.
        Defendant pulled C by her hair and carried her
back upstairs—C could not walk because of the knee injury.
Defendant began to drink vodka. Defendant put C on the
bed and then put his penis and fist in C’s vagina. Defendant
then sodomized C.
         Defendant later went into the bathroom and tried to
slit his wrists. C was able to untie her wrists but remained
in the bedroom because of her knee injury. Defendant took
the rope and tried to hang himself. Defendant, intoxicated,
called his brother, asking for his brother to pick him up.
Defendant’s brother wanted to know if C was okay and
defendant gave the phone to C to text that message. C
instead texted defendant’s brother that she needed help and
provided her address.
        Police arrived at C’s home around 8:15 a.m. and
forced open the door. Defendant was arrested. Police found
C in the upstairs bedroom with facial injuries and blood on
the bedsheets. C later saw an orthopedic surgeon and she
discovered that she would need knee surgery.
         Defendant was charged with 18 counts: three counts
of strangulation, ORS 163.187 (Counts 1, 3, and 11); one
count of fourth-degree assault, ORS 163.160 (Count 2); two
counts of unlawful use of a weapon, ORS 166.220 (Counts 4
and 5); two counts of first-degree rape, ORS 163.375 (Counts
6 and 14); two counts of first-degree sodomy, ORS 163.405
(Counts 7 and 15); two counts of first-degree kidnapping,
ORS 163.235 (Counts 8 and 13); one count of second-degree
assault, ORS 163.175 (Count 9); two counts of attempted
second-degree assault, ORS 163.175, ORS 161.405 (Counts
10 and 12); two counts of unlawful sexual penetration, ORS
163.411 (Counts 16 and 17); and, one count of menacing,
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ORS 163.190 (Count 18). Defendant waived jury trial and
was convicted by the court of each count, except Count 17.
                              II. ANALYSIS
          We proceed in three parts. First, we analyze whether
the trial court erred by convicting defendant of two counts
of first-degree kidnapping, considering the asportation and
purpose elements of each count. Second, we address whether
the trial court plainly erred by convicting defendant on the
second-degree assault count without considering the mens
rea required for the physical injury element. Third, and
finally, we briefly address defendant’s assignment of error
regarding his sentence.
A. Kidnapping Charges
         A person commits first-degree kidnapping if he violates the second-degree kidnapping statute, ORS 163.225,1
and acts with an additional prohibited purpose. Those prohibited purposes include, among other things, to terrorize the victim or to further the commission or attempted
commission of rape in the first degree, sodomy in the first
degree, or unlawful sexual penetration in the first degree.
ORS 163.235. Defendant was convicted of two counts of
first-degree kidnapping: Count 8, for taking C downstairs
with the purpose of terrorizing her; and Count 13, for taking
C upstairs in order to commit first-degree rape, sodomy, and
unlawful sexual penetration.
        During closing arguments of the bench trial, defendant argued that the state had failed to present sufficient
evidence that defendant committed kidnapping in the first
degree. He argued that the state had failed to prove that
defendant had the requisite purpose to terrorize C or to
commit further sexual offenses against her. The parties
subsequently provided the court with written arguments

   1
       ORS 163.225 reads, in part:
       “(1) A person commits the crime of kidnapping in the second degree if,
   with intent to interfere substantially with another’s personal liberty, and
   without consent or legal authority, the person:
         “(a) Takes the person from one place to another; or
       “(b) Secretly confines the person in a place where the person is not likely
   to be found.”
416                                             State v. Miles

concerning whether defendant took C “from one place to
another.” The court ultimately found defendant guilty of
both charged counts of first-degree kidnapping.
         In his opening brief on appeal, defendant challenges
the court’s denial of his MJOA, arguing that the state failed
to present sufficient evidence of the “asportation” element
for both counts and that, with respect to Count 8, the state
adduced insufficient evidence that defendant kidnapped C
with the intent to terrorize her. In his first supplemental
brief, defendant asserts that the trial court plainly erred
in convicting him of first-degree kidnapping on Count 13,
because the victim was not under the age of 12 and he therefore did not commit first-degree rape, sodomy, or unlawful
sexual penetration as referenced in ORS 163.235(1)(e). We
address each count separately.
      1.   Count 13
        As noted, Count 13 was based on defendant taking
C from downstairs to upstairs for the purpose of committing
further sexual offenses against her. ORS 163.235(1) states:
      “A person commits the crime of kidnapping in the first
   degree if the person violates ORS 163.225 [(kidnapping in
   the second degree)] with any of the following purposes:
       “…
      “(e) To further the commission or attempted commission of any of the following crimes against the victim:
      “(A) Rape in the first degree, as defined in ORS
   163.375(1)(b);
      “(B) Sodomy in the first degree, as defined in ORS
   163.405(1)(b); or
      “(C) Unlawful sexual penetration in the first degree,
   as defined in ORS 163.411(1)(b).”
Each of the referenced sections of the first-degree sexual
offenses requires the victim to be under 12 years of age. ORS
163.375(1)(b); ORS 163.405(1)(b); ORS 163.411(1)(b). Because
C was an adult at the time of the offenses, defendant argues
that the trial court plainly erred in convicting him of first-degree kidnapping.
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          The state concedes that the court plainly erred, and
we accept the concession. We agree with the parties that
this supplemental assignment of error was not preserved,
and we exercise our discretion to review it as plain error.
Whether defendant’s conduct satisfied the element for conviction under the specified statute is a question of law, the
error is obvious and not reasonably in dispute, and the
error is apparent on the face of the record. Ailes v. Portland
Meadows, Inc., 

, 

 (1991). In
this instance, the presence of an erroneous conviction for
first-degree kidnapping on defendant’s criminal record is
sufficiently grave to warrant correction and we perceive no
strategic reason for defendant to have failed to object to conviction for a crime that he could not have committed. See
State v. Valladares-Juarez, 

, 

 (2008) (noting considerations when exercising discretion to correct plain error in failing to merge two counts
of first-degree kidnapping). The factors expressed in Ailes
weigh in favor of correcting the error. 

 n 6.

        Because the appropriate remedy would be to remand
with instructions to enter a conviction on second-degree kidnapping if the other elements were all met, we also address
defendant’s assignment of error regarding the asportation
element of kidnapping.

          A “defendant can be said to have moved the victim
from ‘one place’ to ‘another’ only when the defendant changes
the position of the victim such that, as a matter of situation
and context, the victim’s ending place is qualitatively different from the victim’s starting place.” State v. Sierra, 

, 

 (2010), adh’d to as modified on recons,

, 

 (2011). Moving a victim within the
same house or building may be sufficient. Id. at 517 (rejecting categorical rule that movement within the same structure is insufficient to show asportation). However, even when
a victim is moved from one place to another, to come within
the purview of the kidnapping statutes, that movement cannot be merely incidental to other crimes. Id. at 514-15; see,
e.g., State v. Murray, 

, 

 (2006)
(moving victim from one car seat to another was incidental
to defendant’s theft of car).
418                                             State v. Miles

          We thus consider whether there was sufficient evidence to find that defendant moved C to a qualitatively different place, for purposes of Count 13, when he dragged her
upstairs after injuring, binding, and gagging her. We have
little difficulty concluding that there was sufficient evidence
for a rational factfinder to find that defendant moved C from
one place to another. From the starting point, on the first
floor of her home, defendant carried C back upstairs to her
bedroom. Although that is within the same structure, in the
situation and context of this case, moving C from the first
floor, where she had attempted to escape, to her upstairs
bedroom, represents movement to a qualitatively different
place. The movement from downstairs to upstairs was far
more than minimal. Cf. Sierra, 349 Or at 516 (stating that
because statutory language requires movement to a second,
distinct place, minimal movement in position or posture is
generally insufficient). A rational factfinder could readily
find that the difference between downstairs and upstairs
promoted or effectuated “a substantial interference with
[C’s] personal liberty.” Eastman, 

 (internal quotation marks omitted). In C’s situation, where she
was bound at the wrists and gagged, and had an injured
knee, moving her upstairs would serve both to “limit the victim’s freedom of movement” and “increase the victim’s isolation.” State v. Washington, 

, 

(2014), rev den, 

 (2015) (internal quotation marks
omitted).
          With respect to whether the asportation alleged in
Count 13 was incidental to other crimes, defendant’s conduct in binding, gagging, and carrying C upstairs shows an
intent to substantially interfere with the victim’s personal
liberty, which permits a finding that the kidnapping was
not incidental to the crimes of rape, sodomy, and unlawful
sexual penetration. Eastman, 

. Like in
Washington, defendant’s movement of C to the upstairs level
of the house was preliminary to the subsequent sex crimes
and indicated an intention to keep the victim under control
and isolated. 

. A rational factfinder could
find that such movement from downstairs to upstairs was
qualitatively different and was not incidental to the commission of another crime. Cf. Murray, 

 (forcing
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victim to move from driver’s seat to passenger seat was incidental to theft, not a separate kidnapping offense). The trial
court did not err by denying the MJOA on Count 13 under
the asportation argument. We therefore conclude that the
proper remedy based on the plain error discussed above is to
reverse the first-degree kidnapping conviction and remand
with instructions to enter a conviction on second-degree
kidnapping.
    2. Count 8
         Count 8 was based on defendant taking C from
upstairs to downstairs for the purpose of terrorizing her,
thus enhancing the crime to first-degree kidnapping. See
ORS 163.235(1)(d). As noted, defendant challenged the sufficiency of the evidence for Count 8 with respect to both the
asportation element and the purpose element.
         We begin with asportation. The movement of C
from upstairs to downstairs for defendant to take his erectile dysfunction medication presents a closer call on whether
there was a qualitative difference between the two places
than Count 13, but ultimately, we conclude that a rational
factfinder could find that defendant took C from one place to
another within the meaning of the statute. First, in the situation and context of the movement from upstairs to downstairs, defendant had already displayed an unwillingness
to leave C alone upstairs, as his previous trip to get cigarettes in the garage also involved bringing C, naked and
handcuffed, downstairs. In the context of being unwilling
to leave C alone upstairs, the later movement—to take erectile dysfunction medication after an unsuccessful attempt at
penetration—evidenced defendant’s intention to increase or
maintain his control of C. We recognize that an individual’s
intent in keeping control over a person is not dispositive in
determining whether the beginning and ending places are
qualitatively different. See Sierra, 349 Or at 516. However,
in the instant case, by bringing C downstairs, C ended up
in a place that was qualitatively different to her personal
liberty than being left alone upstairs.
       For the same reasons discussed above for Count 13,
defendant’s movement of C from upstairs to downstairs was
420                                            State v. Miles

not incidental to or inherent in any of the crimes occurring
before or after the movement. Here, the evidence indicates
that defendant forced C to go downstairs to allow him to take
medication. Although that was related to his failed attempt
at rape immediately beforehand and to the second set of sex
crimes that occurred later, nothing about those acts implicated any movement by C. That is, any of those crimes could
have been accomplished without moving C from upstairs
to downstairs. And by moving C after the initial rape but
before the subsequent rape, it is reasonable to infer that the
movement reflected defendant’s “intent to keep the victim
under control and isolated.” Washington, 

(emphasis in original).
         Considered as a whole, the evidence was sufficient
to allow a rational factfinder to find that defendant intended
to and did substantially interfere with C’s personal liberty
by moving her from place to place. The trial court did not err
by denying defendant’s MJOA with respect to the asportation element of Count 13.
          We thus turn to the purpose element that elevated
the offense to first-degree kidnapping; namely, whether
defendant took C downstairs with the purpose of terrorizing her. To “terrorize” means to fill “with intense fear or
dread.” Sierra, 349 Or at 520. As explained in the Criminal
Law Revision Commission’s final draft, the term applies to
“ ‘[v]engeful or sadistic abductions accompanied by threats
of torture, death or other severely frightening experience.’ ”
Id. at 519 (quoting Commentary to Criminal Law Revision
Commission Proposed Oregon Criminal Code, Final Draft
and Report § 99 (July 1970)). That consideration turns on
the intent or purpose of the criminal actor, not the subjective effect on the person kidnapped or other people. Id.
         Sierra provides a good example of when evidence is
sufficient to support a finding that a criminal actor’s intent
was to terrorize. In that case, the defendant returned to the
place of a previous encounter with the victim, armed with
a weapon “with the express purpose of using a crossbow to
coerce an apology from [the victim].” Id. at 520. The defendant pointed the crossbow at the victim’s head and forced
him to kneel. Id. In addition, the defendant “yelled at [the
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victim], called him names, threatened to harm [the victim
and the victim’s daughter], and kicked [the victim] in the
head.” 

 In those circumstances, a rational juror could have
inferred that the defendant’s purpose was to take revenge
on the victim by causing the victim to undergo a “severely
frightening experience.” 

 That purpose was different and
greater than the force or threat of force used to accomplish
a kidnapping.

          In contrast, in another case, we concluded that evidence that the victim was ultimately murdered by the defendant was insufficient to demonstrate an intent to terrorize.
State v. Nulph, 

, 

 (1977),
rev den, 

 (1978). In the absence of evidence of a
“vengeful or sadistic intent,” the evidence of intent to murder did not equate to terrorizing the victim because murder
“can be accomplished by surprise or otherwise without terror.” 

 We noted, however, that there was some “slight evidence of nonconsensual sexual conduct,” but that was insufficient to infer an intent to terrorize. 

 “To prove intent to
terrorize, there must be evidence of a purpose to do more
than that which is necessary to take or confine by force,
threat or deception ….” 

         We conclude that this case has more in common
with Sierra than Nulph. As part of the broader context and
situation, defendant had threatened to kill C, had strangled
her twice, had used the knife to stab the mattress around
her head, had told C that “he was going to cut [her] from the
inside out” while holding the knife to her vagina, had raped
her, and had attempted to rape her a second time. Those
acts, coupled with defendant’s erratic and brutal behavior,
indicated some broader general purpose or intent toward C,
which was manifest throughout the encounter from about
1:00 a.m. until the police arrived around 8:00 a.m. In the specific context of the conduct alleged as the basis for Count 8,
a rational factfinder could find that defendant, while forcing
C to go downstairs to allow him to take erectile dysfunction
medication, intended to subject C to the fear of an impending rape. That is a sufficient basis for a factfinder to infer
that defendant intended “to do more than that which [was]
necessary to take or confine by force, threat or deception.”
422                                                            State v. Miles

Nulph, 

. Thus, the trial court did not err
by denying defendant’s MJOA for first-degree kidnapping
on Count 8.
B. Mens Rea for Injury Element of Second-Degree Assault
         In a supplemental assignment of error, defendant
contends that in finding defendant guilty of second-degree
assault, Count 9, for tackling C and injuring her knee, the
trial court plainly erred by failing to consider whether
defendant had at least a criminally negligent mental state
with respect to the injury element of the crime.2 We consider
whether the trial court plainly erred under the contours of
State v. Owen, 

, 

 (2022), and
State v. McKinney/Shiffer, 

, 

(2022), in which the court held that a defendant must be
at least criminally negligent with respect to the “caus[ing]
serious physical injury” element of second-degree assault.
Although the bench trial in this case was conducted before
the Oregon Supreme Court overruled State v. Barnes, 

, 

 (1999), which was understood
to hold that the state needs to prove that a defendant “was
aware of the assaultive nature of his conduct,” we assess
whether any error was plain based on the law at the time of
the appeal, not the time of trial. State v. Ulery, 

, 

 (2020).
          As explained earlier, an error is plain when it is an
error of law, obvious and not reasonably in dispute, and when
it appears on the face of the record. Ailes, 

. If
those requirements are satisfied, the second step is to decide
whether to exercise discretion to consider the error. State
v. Vanornum, 

, 

 (2013). “That
discretion entails making a prudential call that takes into
   2
       ORS 163.175 states, in part:
       “(1) A person commits the crime of assault in the second degree if the
   person:
         “(a) Intentionally or knowingly causes serious physical injury to another;
      “(b) Intentionally or knowingly causes physical injury to another by
   means of a deadly or dangerous weapon; or
       “(c) Recklessly causes serious physical injury to another by means of
   a deadly or dangerous weapon under circumstances manifesting extreme
   indifference to the value of human life.”
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account an array of considerations, such as the competing
interests of the parties, the nature of the case, the gravity of
the error, and the ends of justice in the particular case.” 

          Even when a trial court plainly errs, it does not follow that we must correct the error, or indeed that the error
affected a substantial right. Ailes, 

 (explaining
discretion entailed in correcting plain errors); McKinney/
Shiffer, 369 Or at 335 (applying constitutional harmlessness
analysis to instructional plain error). We cannot correct
errors that had little likelihood of affecting the outcome of
a case. State v. Davis, 

, 

 (2003)
(describing constitutional harm required by Article VII
(Amended), section 3, of the Oregon Constitution); State v.
Kerne, 

, 

 (2017), rev den,

 (2018) (appellate courts cannot exercise discretion to correct harmless plain error).
          In the particular circumstances of this case,
although the trial court plainly erred by failing to consider
whether defendant was at least criminally negligent of the
risk of serious physical injury when he tackled C—who was
naked and handcuffed—as she attempted to escape, it is not
the kind of error that we can correct because the error is
harmless. See State v. Murphy, 

, 

 (2022) (gravity of harm in plain error posture may
be assessed by whether there was little likelihood that error
affected verdict). Although in this case, the trial court did
not recite extensive factual findings supporting its finding
of guilt for Count 9, there is little reason to conclude that it
would have found differently had it considered the mens rea
for the physical injury element of the crime. That is, in the
context of tackling C from behind while she was handcuffed
at the wrists, we conclude that the trial court would have
found that defendant failed to be aware of a substantial risk
that so doing could cause a serious physical injury, or that the
risk was of such a nature and degree that defendant’s failure to be aware of it was a gross deviation from the standard
of care that a reasonable person would observe. McKinney/
Shiffer, 369 Or at 335. Considering a culpable mental state
for the physical injury element would not have made a difference. Thus, the harm, if any, that arose from the error
was not grave. Murphy, 

; see also State v.
424                                                             State v. Miles

Digesti, 

, 

 (2014), rev den,

 (2015) (declining to correct alleged plain error
when it would not have changed the outcome). We therefore
reject defendant’s supplemental assignment of error.
C. Sentencing Under ORS 137.690
          At sentencing, the trial court considered defendant’s convictions on Count 6 (first-degree rape) and Count
7 (first-degree sodomy), as previous convictions under ORS
137.690(c), and sentenced defendant to the mandatoryminimum 300 months for each of Count 14 (first-degree
rape), Count 15 (first-degree sodomy), and Count 16 (first-degree unlawful sexual penetration).3 On appeal, defendant
contends that the trial court applied an incorrect rule of law,
the anti-merger rule under ORS 161.067,4 rather than the
separate “criminal episode” definition of ORS 131.505(4).5
         ORS 137.690 “requires a finding of separate criminal episodes, resulting in an increased sentence.” State v.
Thornsberry, 

, 

 (2021). Here, the
record indicates that the court was considering the proper
definition under ORS 131.505(4) when it remarked that the
question was “whether or not the previous sexual assaults

    3
        ORS 137.690 states:
         “(a) Any person who is convicted of a major felony sex crime, who has one
    (or more) previous conviction of a major felony sex crime, shall be imprisoned
    for a mandatory minimum term of 25 years.
          “…
        “(c) ‘Previous conviction’ includes a conviction for the statutory counterpart of a major felony sex crime in any jurisdiction, and includes a conviction
    in the same sentencing proceeding if the conviction is for a separate criminal
    episode as defined in ORS 131.505.”
    4
      ORS 161.067(3) states, 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.”
     5
       ORS 131.505(4) states, “ ‘Criminal episode’ means continuous and uninterrupted conduct that establishes at least one offense and is so joined in time, place
and circumstances that such conduct is directed to the accomplishment of a single criminal objective.”
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 (2023)                                              425

found in this sentencing were a separate event, separate—
did not arise from the same continuous and uninterrupted
course of conduct.” However, the trial court then explained
its decision by reference to defendant’s “time for reflection,”
which is not a consideration under ORS 131.505(4), but is
a consideration for merger of counts under ORS 161.067(3)
or for whether to run a defendant’s sentences consecutively.
See, e.g., State v. Garcia, 

, 

 (1980)
(separate punishments appropriate if “the defendant, after
one act, starts anew after a time of reflection”); State v.
Moore, 

, 

, rev den, 

 (2022) (application of anti-merger rule determined by
whether “there is a temporary or brief cessation of a defendant’s criminal conduct that occurs between repeated violations and is so marked in scope or quality that it affords
defendant the opportunity to renounce his or her criminal
intent” (internal quotation marks omitted)).6
         Our review of the sentencing record suggests that
the trial court might have employed the incorrect statutory
standard in determining whether there was one or more
criminal episodes. In any event, in light of our disposition
with regard to Count 13, whether defendant’s conduct constituted one or more criminal episodes under ORS 131.505(4)
may be addressed on remand for resentencing.7
         Conviction on Count 13 reversed and remanded for
entry of conviction for second-degree kidnapping; remanded
for resentencing; otherwise affirmed.


    6
      State v. Barton, 

, 

 (2020), discusses the
relationship between “criminal episode” as defined by ORS 131.505(4) and the
anti-merger provisions of ORS 161.067(3).
    7
      The state noted that after sentencing in this case, we decided Thornsberry,
which clarified the burden of persuasion to demonstrate separate criminal episodes for an enhanced sentence under ORS 137.690 and adds gloss to the statutory analysis for the definition of “criminal episode” under ORS 131.505(4).
Furthermore, at sentencing, the trial court, at the request of the state, made
alternative findings supporting departure sentences and imposition of consecutive sentences—totaling the same sentence imposed with the ORS 137.690
enhancement—should an appellate court conclude the major felony sex crimes
were part of the same criminal episode. Because our disposition of Count 13
requires resentencing of all counts, the parties may address the applicable legal
standard and burden in light of Thornsberry on remand, and the court may also
consider whether imposition of the alternate sentence is appropriate.