Oregon Appellate Ct - Dec 14, 2016

by: Sara Werboff • December 16, 2016 • no comments

Merger - Sex Abuse Convictions Merged Because There Was No Sufficient Pause Between Acts

The court concludes that merger was required for two guilty verdicts for first-degree sexual abuse. Defendant groped his neighbor over the course of about 10 minutes, by grabbing her breasts and her vaginal area. The state contended that defendant committed two discrete acts, and it was not part of an uninterrupted course of conduct. The court, relying on its decision in State v. Nelson, 282 Or App 427 (2016), rejects that argument. The state alternatively argued that the touching was not simultaneous, it was sequential, and therefore separated by a pause. Again relying on Nelson, the court concludes that merger of guilty verdicts of multiple acts of sex abuse is appropriate where, as here, the conduct occurred in one location, without interruption by any significant event, and without a pause in the defendant's aggression. Neither defendant's ability to retreat nor the sequential nature of the touching established that something of significance occurred between the touching, and the state failed to establish that there was a sufficient pause between the acts of touching.

State v. Dugan, 282 Or App 768 (2016) (Duncan, P.J.)

Sentencing - Indeterminate Life Sentence with 25-Year Minimum is Proper Sentence for Murder

In this state's cross-appeal, the court concludes that the trial court correctly sentenced defendant to an indeterminate life sentence with a 25-year minimum term of confinement. At defendant's trial, the state pleaded and proved several sentencing enhancement factors that brought defendant's guidelines sentence to 538 months (nearly 45 years). The state argued that the trial court had discretion to impose an indeterminate life sentence with a 538-month minimum term of confinement. The trial court concluded that under ORS 163.115(5)(a) and (b), it could impose the indeterminate life sentence with a 25-year minimum. The court affirms the trial court and rejects the state's argument after reviewing the text, context, legislative history, and historical background of the murder sentencing statute. The court concludes that the legislature intended an offender convicted of murder to be sentenced to an indeterminate life sentence with a 25-year minimum term of incarceration, and did not intend for the trial court to rely on the guidelines or any other source for establishing that minimum term of confinement.

State v. Ambill, 282 Or App 821 (2016) (Lagesen, J.)

State v. Stewart, 282 Or App 845 (2016) (Garrett, J.)

State v. K.J.B., 282 Or App 862 (2016) (Garrett, J.)

State v. Hosley, 282 Or App 880 (2016) (Flynn, J.)

State v. Rogers, 282 Or App 888 (2016) (Haselton, S.J.)

State v. Scott, 282 Or App 896 (2016) (Wilson, S.J.)

Jensen v. Premo, 282 Or App 905 (2016) (per curiam)

State v. Davidson, 282 Or App 907 (2016) (per curiam)

State v. Cross, 282 Or App 910 (2016) (per curiam)

State v. Miles-Langston, 282 Or App 913 (2016) (per curiam)

State v. Hurst, 282 Or App 915 (2016) (per curiam)

State v. Martinez, 282 Or App 917 (2016) (per curiam)