State v. Bauer

504                     March 5, 2025               No. 196

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                    STATE OF OREGON,
                     Plaintiff-Respondent,
                               v.
                  HENRY STEVE BAUER,
                 aka Henry Stephen Bauer,
                    Defendant-Appellant.
               Washington County Circuit Court
                    21CR26224; A181696

   Eric Butterfield, Judge.
   Argued and submitted May 29, 2024.
   Steven J. Sherlag argued the cause for appellant. Also
on the briefs was Sherlag De Muniz LLP. On the reply brief
was Alexandria M. Hanna.
   Timothy A. Sylwester, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
   HELLMAN, J.
   Affirmed.
Nonprecedential Memo Op: 

 (2025)            505

        HELLMAN, J.
        Defendant appeals a judgment that entered three
separate convictions for attempted sexual abuse in the first
degree. ORS 161.405(2)(c); ORS 163.427. In his sole assignment of error, defendant argues that the trial court erred
when it did not merge the three convictions. For the following reasons, we affirm.
         Defendant was charged with four counts of sexual
abuse in the first degree based on allegations that he had
touched the victim’s butt, vagina, inner thigh, and breasts.
The indictment alleged that each of the counts arose from
“a separate act and transaction.” In a written plea petition,
defendant agreed to plead guilty to three lesser-included
counts of attempted sexual abuse in the first degree. As
relevant to this appeal, the petition contained a stipulated
sentence of “60 mos c/c on all counts; D/M ct 4, five yrs postprison supervision less time served.” The paragraph containing the reasons defendant was pleading guilty contained the
line that “[defendant] contends charges will merge & stips to
9C GB.”
         At the sentencing hearing, the prosecutor indicated
without objection that “this is a stipulated sentencing agreement.” After the prosecutor made a factual statement and
read a victim impact statement, defense counsel “ask[ed] the
court to follow the recommendations which were reached in
a difficult situation for everybody, and I think is appropriate under the circumstances and charges in this case.” The
court then stated its “intent to honor the stipulation of the
parties as I understand it. That is, that [defendant]’s a 9 C
on each Counts 1, 2, and 3, with a presumptive 56 to 60
month sentence. Again, by stipulation, the court will impose
a 60 month sentence[.] … Count 4 will be dismissed. The
counts merge for purposes of sentencing.” When the court
asked if the parties had “anything,” defense counsel replied
“I believe that merger is not just for sentencing purposes,
but for conviction purposes. It’s a general merger.” The court
indicated that it was “merging them just for purposes of sentencing” and that defendant “was welcome to appeal that, if
he likes.” This appeal followed.
506                                                          State v. Bauer

        The first question we must answer is whether we
have jurisdiction to review defendant’s appeal. We do not
have jurisdiction to “review any part of a sentence resulting
from a stipulated sentencing agreement.” ORS 138.105(9). It
is undisputed on this record that defendant’s sentence was
the result of a stipulated sentencing agreement. However,
the scope of the stipulation is not entirely clear because
the plea petition contained the line “[defendant] contends
charges will merge & stips to 9C GB.”
         We conclude that, at most, the line that “[defendant]
contends charges will merge & stips to 9C GB” gave defendant an opportunity to argue that the convictions themselves should merge, not just that he should be sentenced to
concurrent sentences.1 The problem for defendant is that he
did not take advantage of that opportunity. Defendant made
no argument in support of the theory that he advances on
appeal.
         Despite the indictment explicitly alleging that
defendant had committed each offense as a “separate act
and transaction,” defendant never argued to the trial court
that he believed there was an insufficient factual basis to
support three separate convictions. In fact, the only statement defendant made regarding merger of convictions came
after the court had already imposed the sentence when
defense counsel said that “I believe that merger is not just
for sentencing purposes, but for conviction purposes. It’s a
general merger.” That general statement did not preserve
the claim defendant advances on appeal. See State v. Wyatt,

, 

 (2000) (explaining that the preservation rule requires that a party “provide the trial court
with an explanation of his or her objection that is specific
enough to ensure that the court can identify its alleged error
with enough clarity to permit it to consider and correct the
error”).

    1
      Defendant argues that the line refers to merger of the convictions themselves. We observe that it is not entirely clear what that line means. Both the
parties and the court in this case incorrectly used the term “merger” to refer to
concurrent sentences. Using the parties’ primary terminology, this line would
not have the meaning that defendant advances. But because we affirm even
under defendant’s proposed interpretation of the line, we do not need to reach a
conclusive determination about its meaning.
Nonprecedential Memo Op: 

 (2025)             507

         If defendant had a different view of what the stipulated sentence entailed, he needed to advance that theory to
the trial court. And if defendant believed that the charges
had to merge because the state had failed to provide a sufficient factual basis to establish a sufficient pause, he needed
to argue that to the trial court as well. Defendant had multiple opportunities to express his understanding of the stipulation or his position regarding merger of convictions, but
he never did so.
         As a result, defendant’s claim is not preserved, and
our review is for plain error. Plain-error review is a twostep process. First, we must first determine whether the
error is plain. State v. Vanornum, 

, 

 (2013) (an error is “plain” when it is “an error of law,
obvious and not reasonably in dispute, and apparent on the
record without requiring the court to choose among competing inferences”). If it is plain, then we must determine
whether to exercise our discretion to correct the error. Ailes
v. Portland Meadows, Inc., 

, 

(1991).
         Here, we would have to choose between competing
inferences as to whether there was a sufficient pause under
ORS 161.067(3) to prevent merger of the convictions. The
indictment charged each count as a “separate act and transaction,” and defendant entered unqualified guilty pleas to
lesser-included offenses of three of those counts. Additionally,
the prosecutor’s brief description of the facts indicated that
the evidence would show that defendant “made [the victim]
lay down on the table and flipped her over on multiple occasions and proceeded to massage her naked body, including
her breasts, her inner thighs, her vaginal area and her
buttocks” and the prosecutor represented that “I do believe
that had we gone through a trial, the evidence would have
panned out differently than the defense expects and that
there would be a very reasonable argument for consecutive
time[.]” A “sufficient pause” 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 a defendant the opportunity to renounce his or her
criminal intent.” State v. West-Howell, 

,
508                                              State v. Bauer

 (2016), rev den, 

 (2017) (internal
quotation marks omitted). Although we have cases in which
we have found that merger was required when separate
acts of touching of a single victim occurred on one occasion,
see, e.g., State v. Lasheski, 

, 

 (2021), our analysis is always fact-specific and involves
determining whether there was a sufficient pause between
incidents. Here, the record supports a reasonable inference
that there was a sufficient pause between each incident to
prevent merger. As a result, there is no plain error.
         In addition, even if we found plain error, we would
not exercise our discretion to correct it. Unlike a case in which
convictions merge as a matter of law, the question of merger
in this circumstance was highly fact-specific and would
depend on a full evaluation of the evidence. Defendant’s failure to make his arguments before the trial court prohibited
that necessary factual development. See Ailes, 

n 6 (a key factor guiding our discretion whether to correct an
unpreserved error is “whether the trial court was, in some
manner, presented with both sides of the issue and given
an opportunity to correct any error”). The missing factual
development also prohibits us from assessing the gravity of
any error and whether the ends of justice would require its
correction.
         Affirmed.