State v. Carlton

354                 January 8, 2025               No. 28

        IN THE COURT OF APPEALS OF THE
                STATE OF OREGON

               STATE OF OREGON,
                Plaintiff-Respondent,
                          v.
          LOGAN BRYCE SCOTT CARLTON,
               Defendant-Appellant.
            Yamhill County Circuit Court
               22CR41397; A181236

  Ladd J. Wiles, Judge.
  Submitted November 20, 2024.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Rond Chananudech, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Kyleigh Gray, Assistant Attorney
General, filed the brief for respondent.
  Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce,
Judge.
  AOYAGI, P. J.
  Affirmed.
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            AOYAGI, P. J.
         Defendant was convicted of third-degree rape, ORS
163.355, third-degree sodomy, ORS 163.385, and third-degree sexual abuse, ORS 163.415. On appeal, in two alternative assignments of error, he argues that the trial court
erred in failing to merge the sexual abuse verdict into either
the rape verdict or the sodomy verdict. The state defends the
merger ruling as correct under existing law. As explained
below, we affirm.
         Defendant was found guilty of third-degree rape for
having vaginal intercourse with a 14-year-old girl. He was
found guilty of third-degree sodomy for having oral intercourse with the same girl during the same incident. He was
found guilty of sexual abuse based on one of those same acts
of intercourse.1 At sentencing, the trial court imposed concurrent sentences on all three counts, stating that, although
separate convictions were appropriate (an implicit reference
to merger law), consecutive sentences were not. The court
noted in that context that the sexual abuse verdict did not
merge with the other verdicts because the sexual purpose
required for sexual abuse is not an element of rape or sodomy. On appeal, defendant argues for the first time that the
trial court erred in failing to merge the sexual abuse verdict
into one of the other verdicts.
         We begin with the issue of preservation. Defendant
did not ask the trial court to merge the sexual abuse verdict with one of the other verdicts, nor did he object when
the court announced its intention to enter separate convictions. Defendant argues that we should nonetheless treat
his claim of error as preserved, because “the purposes of
preservation were met” when the court made a record of
its thinking about merger. We are unpersuaded. “[T]he
primary purposes of the preservation rule are to allow the
trial court to consider a contention and correct any error,
to allow the opposing party an opportunity to respond to a
contention, and to foster a full development of the record.”

     1
       Given how the sexual abuse charge was pleaded in the indictment, the parties’ arguments to the court, and the court’s explanation of its verdict, it is impossible to tell whether defendant was found guilty of sexual abuse based on the vaginal
intercourse or the oral intercourse, but it is undisputed that it was one or the other.
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State v. Clemente-Perez, 

, 

 (2015).
Those purposes were not served by the trial court’s passing reference to merger principles in the context of explaining its decision to impose concurrent sentences. There was
no opportunity for the court to consider, or for the state to
respond to, the arguments in favor of merger that defendant
raises for the first time on appeal.
         Because the claim of error is unpreserved, we are
limited to plain-error review, which defendant has contingently requested in the event that we disagree with him on
preservation. See State v. Wyatt, 

, 

(2000) (“Generally, an issue not preserved in the trial court
will not be considered on appeal.”); ORAP 5.45(1) (allowing
discretionary review of “plain” errors). An error is “plain”
when it is an error of law, is obvious and not reasonably in
dispute, and is apparent on the record without having to
choose among competing inferences. State v. Vanornum, 

, 

 (2013). It is a matter of discretion
whether to correct a plain error. State v. Gornick, 

, 

 (2006).
         The trial court did not plainly err in failing to merge
the sexual abuse verdict into one of the other verdicts. “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.” ORS 161.067(1). In deciding merger, “we look only to
the statutory elements and not to the facts of a particular
case.” State v. Noe, 

, 

 (2011);
see also State v. Alvarez, 

, 

(2010), rev den, 

 (2011) (in deciding merger, “once
we rely on the indictment to determine which of the alternative forms of the crime are at issue, we disregard particular
facts alleged in the indictment or proved at trial”).
        Defendant was found guilty of three crimes: third-degree rape, third-degree sodomy, and third-degree sexual
abuse. The elements of third-degree rape are (1) sexual
intercourse (2) with a person under 16 years of age. ORS
163.355. The elements of third-degree sodomy are (1) oral or
anal sexual intercourse (2) with a person under 16 years of
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age. ORS 163.385. As charged in this case, the elements of
third-degree sexual abuse are (1) sexual contact, i.e., “any
touching of the sexual or other intimate parts of a person or
causing such person to touch the sexual or other intimate
parts of the actor for the purpose of arousing or gratifying
the sexual desire of either party,” (2) with a person who is
incapable of consent by reason of being under 18 years of age.
ORS 163.415 (third-degree sexual abuse); ORS 163.305(5)
(quoted definition of “sexual contact”).
         In State v. Spring, 

, 

,
rev den, 

 (2001), we held that verdicts for third-degree sexual abuse and third-degree rape do not merge,
because each offense requires proof of an element that the
other does not. Third-degree sexual abuse requires sexual
contact, including a sexual purpose, which third-degree
rape does not require; and third-degree rape requires sexual intercourse, which third-degree sexual abuse does not
require. 

 Relying on Spring’s reasoning, we held in State
v. Moore, 

, 

 (2002), that first-degree sexual abuse is not a lesser included offense of first-degree sodomy—which also means that verdicts for those
offenses do not merge. 

 (observing that the analyses for
lesser included offenses and for merger are the same). In
State v. Burgert, 

, 

, rev den,

 (2018), we declined to overrule Moore as plainly
wrong.
         Given that line of case law, defendant seeks to distinguish or otherwise avoid Spring. He first argues that
Spring’s holding is limited to cases where the defendant
engaged in sexual contact separate from the sexual intercourse itself (such as the touching of the victim’s breast in
Spring). But defendant cites no authority for that proposition, and it is inconsistent with the express language of the
anti-merger statute. Under ORS 161.067(1), “[w]hen 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.”
(Emphases added.) See State v. Nelson, 

,

 (2016) (construing “the same conduct or criminal
358                                                        State v. Carlton

episode” in ORS 161.067(1) to mean the same conduct, the
same criminal episode, or both).
         Defendant next argues that “more recent cases
have called the rationale in Spring into question.” Although
he acknowledges that we have followed Spring in a number of other cases,2 defendant points to State v. Ledford, 

, 

 (2012), rev den, 

 (2013),
abrogated on other grounds by State v. Gray, 

,

 (2014), as reaching an inconsistent result, and
he argues that, in State v. Case, 

, 

 (2023), rev den, 

 (2024), we “recently held that
touching a child’s genitals alone satisfies the sexual purpose
element of sexual abuse.” (Emphasis in opening brief.)
         We disagree that Ledford is inconsistent with the
Spring line of cases. We held in Ledford that it was plain
error not to merge guilty verdicts on first-degree rape and
second-degree sexual abuse. Ledford, 

.
Our per curiam opinion contains minimal discussion of our
reasoning, likely because the error was conceded. See 

However, upon consideration, there is a ready explanation
for the holding.
         Unlike first- and third-degree sexual abuse, second-degree sexual abuse does not necessarily require a sexual
purpose. It can be committed by “subject[ing] another person to sexual intercourse, oral or anal sexual intercourse
or, except as provided in ORS 163.412, penetration of the
vagina, anus or penis with any object other than the penis or
mouth of the actor” without consent. ORS 163.425(1)(a). We
omitted to mention in Ledford which subsection the defendant was charged under. See State v. Breshears, 

, 

 (2016) (for merger purposes, “when
a statute provides, as ORS 163.425(1) does, for alternative
means of committing a crime, we look to the indictment to
see what form of the crime is alleged” (emphasis in original)).
    2
      See State v. Raygosa, 

, 

, rev den, 

(2022) (first-degree sexual abuse is not a lesser included offense of first-degree
rape); State v. Marks, 

, 

 (2022) (attempted
second-degree rape and first-degree sexual abuse do not merge); State v. Gerig,

, 

 (2019), rev’d in part on other grounds, 

, 

 (2021) (first-degree rape and first-degree sexual abuse do not
merge).
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However, given the holding, it is reasonable to presume that
he was charged with forms of second-degree sexual abuse
and first-degree rape that properly merge. See, e.g., State
v. Harrington, 

-53, ___, ___ P3d ___ (Jan 8,
2025) (holding that guilty verdicts for first-degree rape and
second-degree sexual abuse should have merged, where the
charged form of first-degree rape was sexual intercourse by
forcible compulsion, ORS 163.375(1)(a), and the charged form
of second-degree sexual abuse was sexual intercourse without consent, ORS 163.425(1)(a)). That resolves the Ledford
issue.
         As for Case, it involved a conviction for first-degree
sexual abuse, based on the defendant having digitally penetrated the anus of a three-year-old child. 

; see ORS 163.427(1)(a)(A) (making it first-degree sexual
abuse when a person “[s]ubjects another person to sexual
contact and … [t]he victim is less than 14 years of age”).
The defendant argued, among other things, that the trial
court erred in denying his motion for a judgment of acquittal (MJOA), because the evidence was legally insufficient to
prove that he “acted with a sexual purpose when he inserted
his finger into [the child’s] anus.” Case, 

.
We rejected that argument, explaining that, viewing the
evidence in the light most favorable to the state, it was reasonable to infer a sexual purpose “from the sexual nature of
the contact itself[.]” 

         In defendant’s view, if it is reasonable to infer a sexual purpose from the very act of touching a sexual or intimate part, then the element of first- and third-degree sexual abuse that purportedly distinguishes them from rape
or sodomy—a sexual purpose for the contact—is essentially
illusory and should not be the basis for anti-merger.
        We disagree that Case supports that reasoning. The
holding in Case was specific to the facts of that case, because
we were reviewing an MJOA ruling. Unlike a merger ruling, which depends solely on statutory elements, an MJOA is
decided on the evidence. See State v. Cunningham, 

, 

 (1994), cert den, 

 (1995) (when
reviewing the denial of an MJOA, we view the evidence
“in the light most favorable to the state” and “determine
360                                           State v. Carlton

whether a rational trier of fact, accepting reasonable inferences and reasonable credibility choices, could have found
the essential element of the crime beyond a reasonable
doubt”); State v. Simmons, 

, 

 (2022), rev den, 

 (2023) (“[W]hether circumstantial evidence is sufficient to support a given inference is
a question of law.”). We did not hold in Case that it is always
reasonable to infer a sexual purpose from the touching of a
sexual or intimate part, but instead that it was reasonable
to do so in that case, viewing the evidence in that case in the
light most favorable to the state.
         Case therefore does not support the proposition that
third-degree sexual abuse does not actually require any
more of a sexual purpose than that inherent in rape or sodomy, such that they should merge. Notably, that was the law
before Spring. It had been the law under State v. Dilts, 

, 

 (1977), that sexual abuse was
a lesser included offense of rape because “sexual contact is
implicit in” rape. Dilts, 

 (reasoning that the
sexual-purpose requirement was included for sexual abuse
only “so that an inadvertent touching would not constitute
a crime” and that the statutory “definition of sexual contact
… obviously includes the advertent touching involved in
a rape or sodomy”). We concluded in Spring, however, that
Dilts was no longer good law in light of the 1987 enactment
of ORS 161.067, the current anti-merger statute. Spring, 

.
         Of course, it is possible that, in enacting ORS
161.067, the legislature may not have considered how it
would apply to the crime of sexual abuse in particular.
First- and third-degree sexual abuse address a type of contact that can be sexual or nonsexual (basically any touching
of another person’s sexual or intimate parts), necessitating a
sexual-purpose limitation on criminal liability, whereas all
degrees of rape, all degrees of sodomy, and the primary form
of second-degree sexual abuse require sexual intercourse
(vaginal, anal, or oral), which is inherently a sexual act. The
legislature may not have foreseen that, due to how sexual
abuse is defined, some defendants will be better off having
committed second-degree sexual abuse (by having sexual
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intercourse without consent) than the less serious crime of
third-degree sexual abuse (which covers any unconsented
sexual contact) once merger principles are applied. If that
was unintended, then the legislature is free to amend the
statutes to modify how sexual crimes merge. Our only role
is to apply the anti-merger statute, ORS 161.067(1), as it is
written, which is what we have done here.
        The trial court did not err in failing to merge the
sexual abuse verdict into either the rape or sodomy verdict.
The judgment is affirmed.
        Affirmed.