Following a guilty plea, defendant was convicted of one count of second-degree sexual abuse (Count 3) and one count of third-degree rape (Count 4). On appeal, defendant assigns error to the trial court's failure to merge the guilt determinations on those two charges into a single conviction. Having reviewed for legal error,
The facts are few and undisputed. Defendant, who was then 22 years old, had sexual intercourse with the victim, who was 13 years old. As a result, defendant was charged with multiple sexual offenses, two of which are pertinent to this appeal.
Merger is governed by ORS 161.067, which provides, in part:
Accordingly, that statutory provision allows separate convictions if three conditions are met: "(1) the defendant engaged in acts that constituted the same conduct or criminal episode, (2) the defendant's acts violated two or more statutory provisions, and (3) each statutory provision requires proof of an element that the others do not."
Here, the parties agree that the first two conditions are satisfied: Defendant's acts constituted a single criminal episode that violated two statutory provisions — ORS 163.425 and ORS 163.355. Thus, the only issue presented by this case is whether the two statutory provisions each "require proof of an element that the other does not." Blake, 348 Or. at 98-99, 228 P.3d 560. In resolving that inquiry, we look to the statutory elements of each offense, rather than the underlying factual circumstances of the crime.
(Emphasis added.) Subsections (1)(a) and (1)(b) provide two alternative ways in which a person may commit second-degree sexual abuse. Here, the indictment reflects that defendant was charged under the alternative set out in ORS 163.425(1)(a) — "The defendant * * * did unlawfully and knowingly subject [the victim] to sexual intercourse, the said [victim] not consenting thereto." Thus, for purposes of our merger analysis, the relevant elements of second-degree sexual abuse as charged in Count 3 are (1) sexual intercourse and (2) lack of consent. The other crime at issue is third-degree rape. A person commits that crime "if the person has sexual intercourse with another person under 16 years of age." ORS 163.355(1). The relevant elements of third-degree rape for Count 4 are (1) sexual intercourse and (2) the victim being under 16 years of age. As defendant points out, being under 16 years of age renders the victim incapable of consenting as a matter of law. See ORS 163.315(1)(a) ("A person is considered incapable of consenting to a sexual act if the person is * * * [u]nder 18 years of age[.]").
Both parties agree that, as used in ORS 163.425, the phrase "does not consent" encompasses both the victim's lack of actual consent and the victim's lack of capacity to consent due to age. See
We addressed a similar issue in Pass, where we held that the trial court plainly erred when it failed to merge the defendant's guilty verdicts for third-degree sodomy and second-degree sexual abuse. 264 Or.App. at 584, 333 P.3d 1139. In that case, the indictment alleged that the defendant committed second-degree sexual abuse when he "did unlawfully and knowingly subject [K] to deviate sexual intercourse * * * the said [K] not consenting thereto, and [K] is unable to consent because she is under the age of 18." Id. at 584-85, 333 P.3d 1139 (brackets in original). The indictment also alleged that the same conduct constituted third-degree sodomy under ORS 163.385
The state argues that Pass is distinguishable because, unlike in that case, here, the allegation in Count 3 that the victim did not consent was "not explicitly predicated on the victim's age." According to the state, that is a distinction with a difference: If the state's theory with respect to Count 3 was that the victim did not actually consent, then a conviction on Count 3 would not merge with a conviction on Count 4, which is predicated on the victim's age. In addition, the state points out that, had the case gone to trial, the state would have attempted to show not only that the victim was underage but also that the victim did not actually consent.
Critically, the state's arguments overlook the fact that merger is controlled by the elements of the crimes that are alleged — not by the particular facts that the state might prove to establish those elements. As noted, 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. That is not the same as looking for the state's factual theory. See, e.g., Pass, 264 Or.App. at 587, 333 P.3d 1139 (listing the crime of unlawful use of a weapon — which can be committed either by (1) carrying or possessing a dangerous weapon or by (2) attempting to use one — as an example of a statute that contains "alternative forms of a single crime"); Alvarez, 240 Or.App. at 172, 246 P.3d 26 ("[O]nce 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." (Emphasis added.)). The form of second-degree sexual abuse alleged in this case is found in subsection (1)(a) of the statute and has two elements — sexual intercourse and lack of consent. How the state intended to prove "lack of consent" is not relevant to the merger analysis.
Proof that a victim is under the age of 16 — and is therefore legally incapable of consent under ORS 163.315(1)(a) — necessarily establishes that the victim does not consent to sexual intercourse. See Ofodrinwa, 353 Or. at 519, 300 P.3d 154 ("A person who is incapable of giving consent stands in the same position as one who elects not to give it; in each case, the person `does not consent.'"); see also
Convictions on Counts 3 and 4 reversed and remanded for entry of a judgment of conviction for one count of second-degree sexual abuse on Count 3; remanded for resentencing; otherwise affirmed.