Oregon Appellate Ct - Nov 23, 2016
by: Sara Werboff • November 25, 2016 • no comments
State v. House, 282 Or App 371 (2016) (Lagesen, J.)
Merger - No Merger was Appropriate When There Was a Sufficient Pause Between Crimes
The court upholds the trial court's order that defendant's two sodomy convictions did not merge. Defendant forced his wife to perform oral sex on him, then choked her causing her to briefly pass out, then unsuccessfully attempted to rape her, and then forced her to perform oral sex again. Defendant was charged with and convicted of two counts of sodomy for forcing his wife to perform oral sex. Defendant argued that the guilty verdicts for the sodomy counts should merge because they were part of an uninterrupted course of criminal conduct and there was a lack of a sufficient pause for defendant to renounce his criminal intent. The court disagrees with defendant. The court concludes that there was a sufficient pause between the sodomy crimes, even if the pause was other criminal conduct of a different nature.
The court also accepts the state's concession that the trial court plainly erred in imposing court-appointed attorney fees.
State v. West-Howell, 282 Or App 393 (2016) (Garrett, J.)
Burglary - Sufficient Evidence that Defendant Trespassed - Failure to Strike Allegation of "Occupied Dwelling" Was Not Plain Error
The court concludes that there was sufficient evidence that defendant committed a trespass, and therefore committed a burglary. Defendant was one of two men hired to repair the victim's gas fireplace. In order to fix the fireplace, the workers were given access to the first floor, crawl space, and garage. After the owner became suspicious that one of the workers had taken some money, he set up a camera which captured defendant going to the second floor of the house, where he took some items. The court concludes that there was sufficient evidence of trespass when defendant went upstairs. Even though the victim had not expressly stated that the workers were not permitted to go upstairs, he allowed them in the home for the limited purpose of repairing the fireplace and therefore allowed them access only to those parts of the home that were necessary for the repair.
State v. Angelo, 282 Or App 403 (2016) (DeHoog, J.)
