S056356, Opinion — State v. Parkins

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Argued and submitted February 9, decision of Court of Appeals affirmed in part
and reversed in part; judgment of circuit court affirmed in part and reversed in
part, and case remanded to circuit court for further proceedings June 25, 2009

STATE OF OREGON,
Respondent on Review,
v.
STEVEN DONALD PARKINS,
Petitioner on Review.
(CC CR0500337; CA A130219; SC S056356)
211 P3d 262

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State v. Parkins

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CJS, Kidnapping § 19.

# En Banc

On review from the Court of Appeals .*

Daniel J. Casey, Portland, argued the cause and filed the
briefs for petitioner on review.

Paul L. Smith, Assistant Attorney General, Salem, argued
the cause for petitioner on review. With him on the brief were
John R. Kroger, Attorney General, and Erika L. Hadlock,
Acting Solicitor General.

LINDER, J.

The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
affirmed in part and reversed in part, and the case is
remanded to the circuit court for further proceedings.

Kistler, J., dissented in part and concurred in part and
filed an opinion.

\* Appeal from Clackamas County Circuit Court, Jeffrey S. Jones, Judge. 220
Or App 314, 185 P3d 1132 (2008).

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LINDER, J.

In this criminal case, defendant was convicted of,
among others charges, one count of first-degree kidnapping
and six counts of first-degree sexual abuse. On appeal to the
Court of Appeals, defendant raised several challenges to his
convictions and sentences. The Court of Appeals affirmed
without opinion. State v. Parkins, 220 Or App 314, 185 P3d
1132 (2008). We allowed defendant's petition for review,
which raises two of the issues that defendant presented to
the Court of Appeals. First, defendant contends that his kid-
napping conviction should be overturned because the evi-
dence failed to show that the victim was "secretly confine[d]
in a place where [she was] not likely to be found." ORS
163.225(1)(b).1 Second, defendant contends that the trial
court should have merged his separate convictions for first-
degree sexual abuse because the six separate counts of the
indictment represented different legal theories for proving
three acts of sexual abuse. For the reasons we set forth below,
we agree with both of defendant's arguments. We therefore
reverse the Court of Appeals decision and remand the case to
the trial court for further proceedings.

Because this appeal arises in part from the trial
court's denial of defendant's motion for judgment of acquittal,
we state the facts underlying defendant's conviction in the
light most favorable to the state. State v. Casey, 346 Or 54,
56, 203 P3d 202 (2009). The incidents alleged in the indict-
ment took place during the summer of 2003. The victim, who
was 11 years old, lived with her mother, Furlow, and her
older sister, in her mother's home. Defendant was a friend of
Furlow's then-boyfriend, Olney, and visited the mother's
home that summer.

One day during that summer, Furlow and Olney left
defendant alone at the house with the victim and her older

1 ORS 163.225(1) provides, in part:

"A person commits the crime of kidnapping in the second degree if, with
intent to interfere substantially with another's personal liberty, and without
consent or legal authority, the person:

"(b) Secretly confines the person in a place where the person is not likely
to be found."

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sister. The victim's sister was on the porch smoking a ciga-
rette, and defendant was in Furlow's bedroom. The victim
asked her sister where she had gotten the cigarette, and her
sister replied that defendant gave it to her. The victim then
walked down the hall and passed by her mother's bedroom.
Defendant offered the victim a cigarette. The victim went
into the bedroom and grabbed a cigarette from the headboard
of the bed. When the victim turned around to ask for a
lighter, defendant shut and locked the bedroom door. Defen-
dant pushed her onto the bed, climbed on top of her, and held
her down by putting his knees on her shoulder. Defendant
kissed the victim. When the victim screamed, defendant
struck her in the face and threatened to burn her with his cig-
arette. Defendant put his hands under the victim's shirt and
touched her breasts. At another point, he put his hand down
the victim's pants and inserted his fingers into her vagina.
Defendant also touched victim's buttocks. The victim tried to
scream and to move, but defendant told her "to stop scream-
ing because no one would hear [her] and no one would care."
At some point, the victim's sister rattled the doorknob to the
locked bedroom. Defendant let the victim up, and she
unlocked the door and ran out of the room.

Based on those events, defendant was indicted in
2005 for one count of first-degree unlawful sexual penetra-
tion, one count of second-degree unlawful sexual penetration,
six counts of first-degree sexual abuse, and one count of first-
degree kidnapping. After a bench trial, the court found defen-
dant guilty on all counts. The trial court sentenced defendant
to 100 months' imprisonment for first-degree unlawful sexual
penetration, 75 months' imprisonment for second-degree
unlawful sexual penetration, 75 months' imprisonment for
each count of first-degree sexual abuse, and 90 months'
imprisonment for first-degree kidnapping, with all sentences
to be served concurrently.

As noted, defendant appealed to the Court of
Appeals, which affirmed without opinion. Defendant then
petitioned for review, raising two issues: (1) whether a person
is "secretly confine[d] * * * in a place where the person is not
likely to be found," as required for the kidnapping charge
(ORS 163.225(1)(b)), when another person knew where the

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victim was located; and (2) whether defendant's six convic-
tions for first-degree sexual abuse should have been merged
into three convictions, when those convictions were based on
different legal theories for proving three acts of sexual abuse.
We address each issue in turn.

In considering the legal sufficiency of the evidence
on the first-degree kidnapping charge, we first address the
state's contention that defendant did not preserve his chal-
lenge to the first-degree kidnapping charge. At the close of
the state's case, apparently anticipating that defendant
would move for a judgment of acquittal, the state alerted
the trial court to the Court of Appeals opinion in State v.
Montgomery, 50 Or App 381, 386-87, 624 P2d 151 (1981). In
doing so, the state described Montgomery as "an important
case with regard to the kidnapping charge," because that
opinion analyzed the "secretly confined" and "place not likely
to be found" elements of ORS 163.225(1)(b). After the state
called the court's attention to Montgomery, the trial court
recessed briefly. When the proceedings resumed, defendant
moved for a judgment of acquittal.

In moving for a judgment of acquittal, defendant dis-
cussed Montgomery and attempted to distinguish that case:

"I know [the state] referred, before the break, to State v.
Montgomery, which is a case regarding a person being
secreted. And although I would factually distinguish the
present case from the Montgomery case in that the individ-
ual that this took place-that the individual who did secret
or attempt to secret or hold [the victim], did not follow the
dictates set out I think in Montgomery in that there wasn't
any attempt to secret her in the sense of when somebody
rattled the door, people exited the room apparently. There
were other people at least one other person, no matter
what version you believe, in the trailer, which was certainly
by all accounts not difficult to hear throughout, and the sis-
ter, being the only one there, her being present in the trailer
or at the furthest, present on the porch, which in some
respects may even be closer to physically to the room that
[the victim] claims this took place in, was certainly within
ear shot, and any cry would have been heard and could have
been heard, seems to defeat the secreting aspect that is
referred to in Montgomery."

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Immediately after that statement, defendant continued,
"However, as the Court knows from the entire case from
opening statement to now, that's not our issue. Our issue is
not a nit-picking argument regarding specific elements and
specific crimes." (Emphasis added.) Defendant explained that
he was "simply saying that there's insufficient evidence, as a
whole" to conclude that defendant committed any criminal
acts as charged. That was consistent with defendant's overall
theory of the case, which was that the abuse either had not
occurred at all or that the perpetrator had been someone else
who sometimes visited the family, and who better matched
the victim's description of the perpetrator. The trial court
thereafter denied defendant's motion for judgment of acquit-
tal. In doing so, the trial court specifically stated:

"I do believe that there's sufficient evidence on the Kidnapping
count to support the allegations set forth in the Indictment,
particularly the evidence that was brought up by the State,
that there were attempts by [the victim] to seek help and to
scream, but that the Defendant told her that nobody would
hear and nobody would care. And, in light of that evidence,
I believe that that charge is legally sound in this case."

## (Emphasis added.)

In arguing that defendant did not preserve the argu-
ment that he now makes, the state points to defendant's
statements after his discussion of Montgomery and asserts
that those statements steered the trial court away from the
legal issue of whether the alleged conduct constituted "secret
confine[ment] * * * in a place where the person is not likely to
be found," as that phrase is used in ORS 163.225(1)(b).
According to the state, defendant urged the trial court to
focus instead on whether there was sufficient evidence to
establish that any crime occurred and, if one had occurred,
whether defendant was the person who had committed it. In
the state's view, the trial court did not have an adequate
opportunity to consider the argument that defendant now
presses.

The general rule is that claims of error that have not
been raised in the trial court will not be considered on appeal.
State v. Wyatt, 331 Or 335, 341, 15 P3d 22 (2000); ORAP 5.45.

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"The purpose of the preservation rule is the practical one of
requiring a defendant to provide an explanation of his or
her position 'specific enough to ensure that the [trial] court
can identify its alleged error with enough clarity to permit
it to consider and correct the error immediately, if correc-
tion is warranted.'"

State v. Amaya, 336 Or 616, 629, 89 P3d 1163 (2004) (quoting
Wyatt, 331 Or at 343).

The state relies on State v. Chavez, 335 Or 44, 48, 56
P3d 923 (2002), as a case arising on analogous facts in which
this court held that defendant had failed to preserve the issue
that he sought to have this court resolve. In Chavez, the
defendant argued on appeal that the Vienna Convention on
Consular Relations (VCCR) required the trial court to sup-
press his incriminating statements to the police. Id. at 46-47.
The defendant had made that argument to the trial court in a
written memorandum in support of a motion to suppress. Id.
at 47. At the hearing on the motion, the trial court stated that
it agreed with the state's position that the VCCR did not cre-
ate individual rights, but told the defendant's lawyer that he
could attempt to convince the court otherwise. Id. The defen-
dant's counsel declined the invitation and, instead, orally
argued only that the defendant's statements should be sup-
pressed under Miranda, which he thought posed the same
considerations as did compliance with the VCCR. Id. This
court held that the defendant's argument for suppression
under the VCCR was not preserved because the defendant
"expressly told the trial court that he was not trying to argue
that the VCCR created individual rights beyond those that
Miranda confers" and "affirmatively asked the trial court not
to consider the argument that he seeks to advance in this
court." Id. at 48. The state contends that, as in Chavez, defen-
dant here directed the trial court away from the issue that he
presses on appeal and, therefore, did not preserve the
argument.

We disagree that Chavez and this case bear sufficient
similarities to compel the same conclusion that the court
reached in Chavez. To be sure, defendant in this case did not
offer the trial court a lengthy and detailed argument about
why the state's evidence did not satisfy the element of
"secretly confin[ing] the person in a place where the person is

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not likely to be found," ORS 163.225(1)(b). Unlike the defen-
dant in Chavez, however, defendant in this case actually did
discuss relevant precedent (Montgomery) and did present
some argument to the trial court as to how his case differed
from that precedent. Defendant's subsequent statement to
the court, "that's not our issue," could have been a segue to a
different argument, as defendant now urges. It also could
have been, as the state urges, an abandonment of any
Montgomery-type challenge to the kidnapping charge. We
can conceive of a third possibility as well: Defendant may
have been confident of his likely success on his theory that,
because he did not match the victim's description of the per-
son who had abused her, the evidence was insufficient to
prove that defendant had committed any criminal acts. Suc-
cess on that point would have resulted in an acquittal on all
charges, not just on the kidnapping charge. Defendant may
have cast his argument as he did to convey the strength of
that confidence to the trial court. In all events, the trial court,
in our view, appears to have understood the Montgomery
issue to be in play. In denying the motion for judgment of
acquittal, the court specifically stated that the kidnapping
charge "is legally sound in this case" and highlighted, not the
evidence of defendant's identity as the perpetrator, but the
evidence that satisfied the confinement element of the crime.

This court recently reaffirmed the important policies
behind the preservation rule-e.g., procedural fairness to the
parties and the trial court, judicial economy, and full devel-
opment of the record. See Peeples v. Lampert, 345 Or 209,
219-21, 191 P3d 637 (2008) (discussing and reaffirming the
importance of the preservation rule). But the preservation
rule also can come at a cost. It may prevent a reviewing court
from correcting prejudicial error, at least when the error is
not one that the court can reach as error apparent on the face
of the record (so-called "plain error"). See State v. Steen, 346
Or 143, 145, 206 P3d 614 (2009) (discussing plain error
exception to preservation requirement generally); ORAP
5.45(1) (appellate courts will not consider unpreserved issues
unless they qualify as errors apparent on the record). The
preservation rule also may inhibit needed development or
clarification of the law. Consequently, as this court has cau-
tioned, "problems may arise if the preservation onion is sliced

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too thinly." Amaya, 336 Or at 629. Ultimately, the preserva-
tion rule is a practical one, and close calls-like this one-
inevitably will turn on whether, given the particular record of
a case, the court concludes that the policies underlying the
rule have been sufficiently served.

Here, those policies are sufficiently served. The stat-
utory issue that defendant raises was presented to the trial
court, even if defendant addressed it ambivalently. And not
only did the state have a meaningful opportunity to address
the issue, it was the state that raised Montgomery before the
trial court. Finally, the trial court had an opportunity to
resolve the issue, and the record suggests that the trial court
in fact did so. To be sure, the issue could have been better pre-
served, but it was, we conclude, adequately preserved.

We therefore turn to the merits of defendant's kid-
napping argument. Defendant was convicted of first-degree
kidnapping. ORS 163.235(1) defines that crime:

"A person commits the crime of kidnapping in the first
degree if the person violates ORS 163.225 with any of the
following purposes:

"(a) To compel any person to pay or deliver money or
property as ransom;

"(b) To hold the victim as a shield or hostage;

"(c) To cause physical injury to the victim; or

"(d) To terrorize the victim or another person."

ORS 163.225(1) provides, in part:

"A person commits the crime of kidnapping in the sec-
ond degree if, with intent to interfere substantially with
another's personal liberty, and without consent or legal
authority, the person:

** * * * *

"(b) Secretly confines the person in a place where the
person is not likely to be found."

As noted, defendant focuses his argument on the meaning of
the phrase "secretly confines the person in a place where the
person is not likely to be found." ORS 163.225(1)(b).

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In interpreting statutes, the appropriate first step in
determining the legislature's intent is to examine the statu-
tory text and context. State v. Gaines, 346 Or 160, 171, 206
P3d 1042 (2009). ORS 163.225(1)(b) does not define the
phrase at issue. We therefore look to the "plain, natural, and
ordinary meaning" of that phrase. PGE v. Bureau of Labor
and Industries, 317 Or 606, 611, 859 P2d 1143 (1993).
"Secretly confine[d] * * * in a place where the person is not
likely to be found," ORS 163.225(1)(b), means that a person is
held or restrained in a place where it is not probable that the
person will be located, either accidentally or through search-
ing. Both the words and their meaning are straightforward.2

Because this court has no cases applying that phrase
from ORS 163.225(1)(b), both parties discuss the sole Court of
Appeals decision on this issue, Montgomery, 50 Or App at
386-87. In that case, the court analyzed both whether the vic-
tim had been "secretly confine[d]" and whether the confine-
ment had been in a "place where the person is not likely to be
found." Id. The defendant and his brother had dragged the
victim into the victim's bedroom. Id. at 383. When the police
arrived at the victim's apartment, the defendant and his
brother pulled the victim into the bathroom, where defen-
dant held a knife to the victim's throat while the defendant's
brother went to speak with the police. Id. The defendant's
brother told the defendant to cut the victim's throat if the vic-
tim made a sound. Id.

The Court of Appeals had little difficulty concluding
that the victim in Montgomery had been "secretly confine[d]":

"Defendant clearly confined the victim by keeping him in
the bathroom. And, using the ordinary definition of

2 We generally resort to dictionary definitions for the common meaning given
to statutory terms. See State v. Murray, 340 Or 599, 604, 136 P3d 10 (2006) (so
observing). For particularly straightforward terms-like the statutory terms at
issue in this case-dictionary definitions tend to offer us little more than equally
straightforward synonyms. "Confine," for example, means, among other things, "to
hold within bounds" and "to keep in narrow quarters." Webster's Third New Int'l
Dictionary 476 (unabridged ed 2002). Here, the key words in the phrase at issue are
"secretly," "likely," and "found." The dictionary defines "secret" as "kept from
knowledge or view" and "concealed." Id. at 2052. "Likely" means probable or "hav-
ing a better chance of existing or occurring than not." Id. at 1310. "Found" is the
past tense of "find," which means "to come upon accidentally" and "to come upon
\* \* \* by searching or effort." Id. at 851.

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'secretly' as keeping something from knowledge or view,
defendant and his brother made the place secret by locking
the door, closing the curtains, holding the victim at knife-
point so that he was not able to respond to the officer's
knocks, and telling the officers that the victim was not at
home."

Id. at 386. The "place where the person is not likely to be
found" component of the kidnapping charge gave the court
more trouble, but the court ultimately concluded that, under
the circumstances of the case, the bathroom in the victim's
own apartment was such a place:

"[A]lthough a victim's own bathroom is not ordinarily a
place where that person is not likely to be found, the room
can be made into such a place by the efforts of the kidnap-
per. Here, defendant and his brother made a calculated
effort to insure that the police would not find the victim in
his own apartment and they succeeded. Under these cir-
cumstances the jury was entitled to find that defendant
confined the victim in a place where he was not likely to be
found."

Id. at 386-87.

The facts in Montgomery are not before us, and our
task is not to decide that case. We do agree with the Court of
Appeals, however, that determining whether a person was
secretly confined in a place where the person is not likely to
be found must take into account the circumstances of the
place, the victim, and the defendant's actions. Here, it is
beyond dispute that the victim was confined in her mother's
bedroom-defendant locked the door to the bedroom, pinned
the victim on the bed, and threatened to burn her with a cig-
arette if she continued to scream. From those same actions, a
trier of fact could find that defendant "secretly" confined the
victim-defendant concealed the victim's confinement by
taking steps to ensure that the victim not reveal that she was
locked in the bedroom with defendant.

No reasonable finder of fact could conclude, however,
that the confinement was in a place where the victim was not
likely to be found. The victim's older sister was on the porch
of the home at the time of the incident. Her sister suggested

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that the victim go to their mother's bedroom and ask defen-
dant for a cigarette, and the victim left the porch and went
inside in response to that suggestion. The sister thus either
knew that the victim had gone to their mother's bedroom, or
at least would have thought that she had done so. That fact is
confirmed by the sister's actions. When the sister entered the
house to look for the victim, she went to the door into her
mother's bedroom and jiggled the door handle. Because the
sister thought that the victim had gone to her mother's bed-
room to see defendant, it also was probable, and thus likely,
that the sister would have found the victim through search-
ing.3 Under the circumstances of this case, therefore, defen-
dant cannot be said to have secretly confined the victim in a
place where she was "not likely to be found," within the
meaning of ORS 163.225(1)(b).4 We therefore must reverse
defendant's conviction for first-degree kidnapping.

We turn to the second issue raised by defendant.
Defendant contends that the trial court erred in not merging
his six sexual abuse convictions into three convictions. Before
we proceed to the merits of defendant's merger argument,
however, we again must address the state's contention that
this issue was not properly preserved in the trial court.

Defendant filed a sentencing memorandum in the
trial court that cited the anti-merger statute, ORS 161.067:

"Defendant has recorded his objection to any sentence
imposed under ORS 137.700. If the court does sentence the
defendant under that sentencing scheme[,] the court's
power to impose sentences consecutive to one another is
limited. ORS 161.067; [State] v. McCloud, 177 Or App 511
(2001). These references apply specifically to the issue of
merger. Clearly defendant's convictions for sexual abuse in

3 The state contends that the sister's presence should not affect the analysis
because she was outside on the porch smoking a cigarette and she also had been
drinking on the day in question. There is no evidence, however, that either fact pre-
vented the sister from knowing the victim's location.

4 We emphasize that our decision is limited to the particular factual circum-
stances of this case. We do not hold here that a room in one's own home can never
be a "place where the person is not likely to be found" when another person is pres-
ent in the home for purposes of ORS 163.225(1)(b). Neither do we hold that secret
confinement in a "place * * * not likely to be found" cannot include places where the
victim is actually-if accidently-found.

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the present case should be merged for purposes of
conviction."5

(Emphasis added.) In that memorandum, defendant also
stated that, "[i]n the present situation[,] the court has found
the defendant guilty of charges that are not separately pun-
ishable offences [sic] under ORS 161.067." Defendant's sen-
tencing memorandum discussed both merger of the counts on
which defendant had been found guilty as well as consecutive
sentencing and appeared at times to conflate those concepts.

At the sentencing hearing, defendant again raised
ORS 161.067 and McCloud. There, the context was an argu-
ment concerning consecutive sentencing:

"In addition, Your Honor, [State v. McCloud], which I
referred to in the memorandum, as well [as ORS 161.067]
seems they set out that the Court would have to make cer-
tain findings in any consecutive sentencing, especially as
the Court pointed out, that this was a single incident, short
time span, not allowing the Defendant to pause, I think is
one of the words used in the case law for purposes of con-
templation further that the harm caused by the Defendant
was greater than the qualitative different loss to the victim
in similar cases.

"I think that-I think that given the background of
[defendant]-uh-that consecutive sentences in this case
would be overkill, quite frankly."

The state discussed ORS 161.067 in greater detail than did
defendant, although the state similarly focused primarily on
the consecutive sentencing issue:

"[ORS] 161.067 talks about determining punishable
offenses for violation of multiple statutory provisions and/
or multiple victims or repeated violations. Subsection 1 is
the one that applies in this case. It says when the same con-
duct or criminal episode violates two or more statutory pro-
visions, and each provision requires proof of an element

5 In State v. McCloud, 177 Or App 511, 34 P3d 699 (2001), vac'd, 334 Or 491, 52
P3d 1056 (2002), the Court of Appeals analyzed the difference between the merger
of a defendant's convictions and whether the sentences for those convictions should
be served concurrently or consecutively.

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that the others do not, there are as many separately pun-
ishable offenses as there [are] separate statutory violations.

And we have that in this case. And that's why you can issue
consecutive sentences if you'd like."6

(Emphasis added.) The trial court's ruling at the sentencing
hearing did not address merger. Instead, the trial court sen-
tenced defendant to 100 months on the first-degree unlawful
sexual penetration count and ordered that the sentence for
all remaining counts run concurrently to that sentence.

In arguing that the merger issue is not adequately
preserved, the state urges that the trial court did not have
the opportunity to address the merger issue that defendant
raises on appeal. The state acknowledges that defendant
cited the relevant statute (ORS 161.067) and a relevant case
(McCloud) both in his sentencing memorandum and at the
hearing. The state asserts, however, that defendant's sen-
tencing memorandum was ambiguous and that defendant's
statements at the hearing, which omitted any discussion of
merger, led the trial court to conclude that defendant's argu-
ment focused only on concurrent sentencing. Consequently,
according to the state, defendant's citation of those sources
was not enough to preserve the specific claim of error that
defendant seeks to raise on appeal.

As was true of the preservation issue on the kidnap-
ping charge, the preservation of the merger issue is a close
one. But, we again conclude that the issue was adequately
preserved. Defendant discussed the relevant statute and a
relevant decision, both in his sentencing memorandum and
at the sentencing hearing. In his sentencing memorandum,
defendant stated, "Clearly defendant's convictions for sexual
abuse in the present case should be merged for purposes of
conviction." Although his argument at the hearing was not as
explicit-he appeared to conflate the issues of merger and of
consecutive sentences-he did not abandon or withdraw the
issue. The state mentioned merger, and both the state and

6 Additionally, earlier in the sentencing hearing, the prosecutor summarized,
"As you know, there are nine counts in the Indictment, and the Defendant was
found guilty of all nine counts, and they're all Ballot Measure 11 Counts. I believe
that none of the charges legally merge for sentencing purposes. They're all separate
convictions." (Emphasis added.)

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defendant discussed the relevant statute and decision. The
state had an opportunity to meet defendant's merger argu-
ment, and the trial court had an opportunity to decide the
issue. In short, the issue appears to have been sufficiently
well preserved to serve the policies that underlie the preser-
vation requirement.

We therefore move on to address the merits of defen-
dant's argument that the trial court should have merged his
sexual abuse convictions. Defendant was charged with and
convicted of six counts of sexual abuse in the first degree.
ORS 163.427 defines first-degree sexual abuse:

"(1) A person commits the crime of sexual abuse in the
first degree when that person:

"(a) Subjects another person to sexual contact and:

"(A) The victim is less than 14 years of age;

"(B) The victim is subjected to forcible compulsion by
the actor; or

"(C) The victim is incapable of consent by reason of
being mentally defective, mentally incapacitated or physi-
cally helpless; or

"(b) Intentionally causes a person under 18 years of
age to touch or contact the mouth, anus or sex organs of an
animal for the purpose of arousing or gratifying the sexual
desire of a person.

"(2) Sexual abuse in the first degree is a Class B
felony."

"Sexual contact," for purposes of first-degree sexual abuse, is
defined as

"any touching of the sexual or other intimate parts of a per-
son or causing such person to touch the sexual or other inti-
mate parts of the actor for the purpose of arousing or grati-
fying the sexual desire of either party."

ORS 163.305(6).

In defendant's case, the six charges of first-degree
abuse were based on three acts of sexual contact. Specifically,
counts three and four both alleged sexual contact by touching
the victim's breast; counts five and six alleged sexual contact

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by touching the victim's vagina; and counts seven and eight
alleged sexual contact by touching the victim's buttocks.
Although there was only a single act of touching as to each
prohibited body part, the conduct resulted in two charges per
act, because, for each pair of counts, the victim was alleged to
have been under the age of 14 years and the sexual contact
was alleged to have been committed using forcible
compulsion.

In arguing that the guilty verdicts on each of the
paired counts should merge into a single guilty verdict,
defendant relies on the so-called "anti-merger" statute, ORS
161.067(1), which provides:

"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."

Under that statute, for a single criminal act or criminal epi-
sode to give rise to more than one statutory violation, three
requirements must be satisfied: (1) defendant must have
engaged in acts that are "the same criminal conduct or epi-
sode"; (2) defendant's acts must have violated two or more
"statutory provisions"; and (3) each "statutory provision"
must require "proof of an element that the others do not."
State v. Crotsley, 308 Or 272, 278, 779 P2d 600 (1989) (quot-
ing former ORS 161.062(1) (1985)), the nearly identical pre-
cursor to ORS 161.067(1)). In this case, neither the first nor
the third requirements are in dispute. That is, the parties
agree that each set of charges involved the same conduct or
criminal episode. They also agree that each charge required
proof of an element that the paired charge did not. They dis-
agree only on whether defendant's conduct violated two or
more "statutory provisions."

To resolve that issue, we begin with our recent deci-
sion in State v. White, 346 Or 275, 211 P3d 248 (2009), in
which we synthesized this court's prior merger cases discuss-
ing the phrase "statutory provisions" and analyzed how that
phrase applied to multiple convictions of second-degree rob-
bery. The analysis in White is particularly instructive in this
case.

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In White, this court reaffirmed that, to determine
whether a single act violates two or more "statutory provi-
sions," a court must determine whether the legislature
intended to create a single crime or two or more crimes.
White, 346 Or at 280 (citing cases). That inquiry does not
depend-at least not entirely-on the structural form that a
criminal statute takes, although the use of a single section is
one indication that the legislature intended to define a single
crime. Id. (citing State v. Barrett, 331 Or 27, 35, 10 P3d 901
(2000)). Neither does the inquiry turn entirely on whether
two or more charges are based on one or more statutes that
address "separate and distinct legislative concerns." Id. at
283. That is so because, as this court observed in White,
"every statutory section that 'requires proof of an element
that the others do not,' ORS 161.067(1), necessarily involves
a distinct legislative concern-otherwise there would be no
need for the additional element." Id. This court therefore
clarified in White:

"[W]e view the statute as a whole, looking to the text, con-
text, and, when appropriate, legislative history of the stat-
ute. That analysis includes consideration of whether the
sections, although addressing different concerns, also may
address, on a more general level, one unified objective."

Id. at 283-84.

In applying that analysis, White began with the stat-
ute defining second-degree robbery and its context more gen-
erally. As the court in White explained, second-degree rob-
bery is set out in a single statutory section and is part of a
scheme that incrementally grades robbery into three levels of
crimes-third-degree robbery, second-degree robbery, and
first-degree robbery. See White, 346 Or at 284 n 9, 285 nn 10,
11 (quoting text of pertinent statutes). The base crime is
third-degree robbery. Id. at 285. Second- and first-degree rob-
bery consist of committing the base crime (third-degree rob-
bery) under any of several circumstances that elevate the
crime to one of the higher degrees. Id. at 285-86. For both
second- and first-degree robbery, the elevating elements are
set out in separate paragraphs in the statutory section that
defines that degree of the crime. Id. at 284 n 9, 286 n 12. For
second-degree robbery, the elevating elements are either that

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the robber represents that he or she is armed with something
that purports to be a dangerous or deadly weapon (ORS
164.405(1)(a)) or the robber is aided by another person actu-
ally present (ORS 164.405(1)(b)).

White observed that the fact that the elevating ele-
ments were set out in different paragraphs of the single sec-
tion defining the single crime of second-degree robbery was
at least a possible indication that the legislature intended to
define two separate crimes-i.e., robbery when aided with a
person actually present, and robbery when armed with some-
thing that purports to be a weapon. Id. at 286-87. On the
other hand, the fact that the two crimes were given the single
designation of robbery in the second degree, and were set out
in a single section of the criminal code, suggested the oppo-
site-that is, it suggested that the legislature intended to
describe only the single crime of robbery in the second degree,
with multiple ways that the crime could be elevated from
third-degree to second-degree robbery. Id. at 286-87. To
determine which understanding was correct, the court
turned to legislative history. Id. at 287. The court concluded
that the robbery statutes represented an incremental scheme
in which the elements that enhanced third-degree robbery to
higher degrees of robbery reflected a common legislative con-
cern (the potential for violence). Id. at 287-88. As a result, the
court also concluded that the enhancing elements for com-
mitting second-degree reflected the legislature's intent to
define a single crime of second-degree robbery, not several
separate crimes. Id. at 290-91.

The first-degree sexual abuse statute at issue here is
part of an incrementally graded scheme that is analogous to
the robbery statutes in White. ORS 163.427, by its terms,
defines a single crime-first-degree sexual abuse. Subsection
(1) of ORS 163.427 lists four ways in which a person may
commit the crime of sexual abuse in the first degree. The first
paragraph, ORS 163.427(1)(a), lists three alternatives in
three subparagraphs: (A) the defendant uses forcible compul-
sion to have sexual contact with the victim; (B) the defendant
has sexual contact with a victim who is less than 14 years of
age; or (C) the defendant has sexual contact with a victim
who is incapable of consent. The fact that the legislature
included three alternative elements for first-degree sexual

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abuse in paragraph (a) of that one section indicates that the
legislature intended to define one single crime. But, the leg-
islature's decision to list those different elements in separate
subparagraphs at least clouds somewhat the legislative
intent that can be discerned from the structure of the statute.
As in White, we therefore look to the legislative history for
guidance.

In 1970, the Criminal Law Revision Commission
proposed two statutory sections that defined two degrees of
sexual abuse. First-degree sexual abuse was defined as
follows:

"(1) A person commits the crime of sexual abuse in the
first degree when he subjects another person to sexual con-
tact; and

"(a) The victim is less than 12 years of age; or

"(b) The victim is subjected to forcible compulsion by
the actor."

Commentary to Criminal Law Revision Commission
Proposed Oregon Criminal Code § 116(1), 122 (July 1970).
The proposed statute governing second-degree sexual abuse
provided, in part:

"(1) A person commits the crime of sexual abuse in the
second degree if he subjects another person to sexual con-
tact; and

"(a) The victim does not consent to the sexual contact;
or

"(b) The victim is incapable of consent by reason of
being mentally defective, mentally incapacitated or physi-
cally helpless."

Id. § 115(1), 121. The legislature codified those sections as
ORS 163.435 (first-degree sexual abuse) and ORS 163.415
(second-degree sexual abuse) in 1971.7

7 The legislature amended sexual abuse statutes in 1991. Or Laws 1991,
ch 830. First-degree sexual abuse was renumbered to ORS 163.427. Third-degree
sexual abuse was added to the statutes. Second-degree sexual abuse is now set
forth in ORS 163.425:

"(1) A person commits the crime of sexual abuse in the second degree
when that person subjects another person to sexual intercourse, deviate sexual
intercourse or, except as provided in ORS 163.412, penetration of the vagina,

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The Commission described the proposed statutes:

"The offense of sexual abuse is divided into two ascend-
ing degrees. Section 115 defines the basic offense. * * *

"The offense is raised a degree if either of the following
factors is present: (1) The victim is under 12 years of age; or
(2) The victim was subjected to forcible compulsion by the
actor."

Criminal Law Revision Commission Commentary at 122-23.
That description indicates that the Commission intended to
create a basic offense-second-degree sexual abuse-and
that the basic offense could be raised to first-degree sexual
abuse if either of two facts were present. The "basic offense"
of second-degree sexual abuse, as proposed by the Commission,
occurs in either of two circumstances: sexual contact without
consent or sexual contact with a person incapable of consent.
That basic offense is elevated to first-degree sexual abuse in
two parallel circumstances: sexual contact through forcible
compulsion and sexual contact with a person under 12 years of
age.

The offense of sexual abuse as proposed and
described by the Commission is thus similar to the robbery
statutes at issue in White (i.e., the degree of the robbery
increases with an increase in the potential for violence, and
each degree sets out multiple ways in which that increased
potential for violence is present). The offense of sexual abuse
is also similar to this court's description of the aggravated
murder statute in State v. Barrett, 331 Or 27, 36, 10 P3d 901
(2000):

"The wording of the statute that we just have reviewed
shows that the harm that the legislature intended to

anus or penis with any object other than the penis or mouth of the actor and the
victim does not consent thereto.

"(2) Sexual abuse in the second degree is a Class C felony."
Third-degree sexual abuse is now defined in ORS 163.415:

"(1) A person commits the crime of sexual abuse in the third degree if the
person subjects another person to sexual contact and:

"(a) The victim does not consent to the sexual contact; or

"(b) The victim is incapable of consent by reason of being under 18 years of
age.

"(2) Sexual abuse in the third degree is a Class A misdemeanor."

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address by [the aggravated murder statute] was the inten-
tional, aggravated killing of another human being. The
aggravating factors constitute no more than different theo-
ries under which murder becomes subject to the enhanced
penalties for aggravated murder."

Similarly, the alternatives set out in the first paragraph of
the first-degree sexual abuse statute, ORS 163.427(1)(a)(A) -
(C) constitute no more than different theories under which
the "basic offense" of second-degree sexual abuse (which, as
noted, since has been amended and redesignated as third-
degree sexual abuse) becomes the more serious offense of
first-degree sexual abuse; they are not separately punishable
offenses.

The state, however, argues that Crotsley compels a
different conclusion in this case. In Crotsley, the defendant
threatened a 14-year old girl with a knife and forced her to
engage in sexual acts. 308 Or at 275. The defendant was
charged with first-degree rape and first-degree sodomy
because he used forcible compulsion. Id. The defendant also
was charged with third-degree rape and third-degree sodomy
because his victim was less than 16 years of age. Id. The
defendant argued that his third-degree convictions should
have merged with his first-degree convictions because the
first- and third-degree charges were merely alternative
charges for the same criminal acts. Id. The state argued that
former ORS 161.062 (1985) (the precursor to ORS 161.067)
authorized separate convictions and sentences for the first-
degree and third-degree crimes. Id. at 276. This court agreed
with the state.

In concluding that merger was not required, the
court in Crotsley explained that the proponents of former
ORS 161.062 (1985)

"clearly intended that criminal records accurately reflect all
crimes actually committed and that a person who commits
multiple crimes by the same conduct or during the same
criminal episode should have a criminal record reflecting
each crime committed rather than only a single conviction
which would not accurately portray the nature and extent
of that person's conduct."

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Id. at 276-77. The court analyzed the rape statutes at issue in
that case, ORS 163.3758 (defining first-degree rape) and ORS
163.3559 (defining third-degree rape). Id. at 278-80. ORS
163.375(1)(a), the court explained, was a "clear statutory pro-
hibition against forcing sex on any female." Id. at 279. On the
other hand, the third-degree rape statute, ORS 163.355, as
well as the other variations of first-degree and second-degree
rape, "are similar to each other in that they accord special
protection to specified groups of females by making sexual
intercourse with one of them a crime even with 'consent.'" Id.
Therefore, the court held that the first- and third-degree rape
statutes addressed a "separate and distinct legislative con-
cern, and each alternative is a separate statutory 'provision'
for purposes of ORS 161.062(1)." Id. The court applied the
same reasoning to the first- and third-degree sodomy stat-
utes, ORS 163.405 and ORS 163.385. Id. at 280. The court
therefore concluded that the defendant had violated four sep-
arate statutory provisions and that the anti-merger statute
applied. Id.

The state argues that the rape and sodomy statutes
at issue in Crotsley are indistinguishable from the sexual
abuse statute in this case and, therefore, Crotsley controls the
outcome here. We disagree. Crotsley involved two different
rape statutes that defined two different degrees of crime.
Likewise, it involved two different sodomy statutes that
defined two different degrees of crime. It is difficult to see
how, when the legislature sets out the offenses in separate

8 When Crotsely was decided, ORS 163.375 (1985) provided:

"(1) A person who has sexual intercourse with a female commits the crime
of rape in the first degree if:

"(a) The female is subjected to forcible compulsion by the male; or

"(b) The female is under 12 years of age; or

"(c) The female is under 16 years of age and is the male's sister, of the
whole or half blood, his daughter or his wife's daughter.

"(2) Rape in the first degree is a Class A felony."

9 When Crotsley was decided, ORS 163.355 (1985) provided:

"(1) A male commits the crime of rape in the third degree if he has sexual
intercourse with a female under 16 years of age.

"(2) Rape in the third degree is a Class C felony."

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sections, defines them as different degrees of an incremen-
tally graded offense, and assigns them different punish-
ments, those can be anything other than separate provisions
for purposes of the anti-merger statute.10 See White, 346 Or at
294 (Kistler, J., concurring). But that is not what the legisla-
ture did here. This case involves only a single statute and a
single first-degree crime. That structural aspect of the stat-
ute alone distinguishes Crotsley and renders it not control-
ling in this case. And, as we already have described, the
structure of the sexual abuse statute, together with what the
legislative history tells us about whether each degree of the
offense was perceived as describing multiple offenses or
multiple ways of committing a single offense, convinces us
that the subparagraphs of the first-degree sexual abuse
statute, ORS 163.427(1)(a)(A) - (C), are not separate provi-
sions within the meaning of the anti-merger statute.

We conclude, therefore, that the legislature intended
to create the single crime of first-degree sexual abuse. The
presence of more than one of the elements that convert a
lower degree of sexual abuse to first-degree sexual abuse does
not convert defendant's single act into separate crimes. We
agree with defendant that his six convictions should merge
into three convictions: one conviction related to his touching
of the victim's breast; a second conviction related to his touch-
ing of the victim's vagina; and a third conviction for his touch-
ing of the victim's buttocks.

The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court is
affirmed in part and reversed in part, and the case is
remanded to the circuit court for further proceedings.

10 We acknowledge that Crotsley contains an observation suggesting that the
alternatives contained solely within the first-degree rape statute constituted "sep-
arate statutory provisions" under what is now ORS 160.067(1). After noting those
alternative ways of committing first-degree rape, the court stated, "[E]ach statu-
tory alternative addresses a separate and distinct legislative concern, and each
alternative is a separate statutory 'provision' for purposes of ORS 161.062(1)."
Crotsley, 308 Or at 279. Because the facts in Crotsley did not present an issue
involving the alternative ways of committing first-degree rape, that discussion was
not germane to the issue presented and is not binding.

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KISTLER, J., dissenting in part and concurring in
part.

The trial court, sitting as the trier of fact, convicted
defendant of kidnapping an 11-year-old girl and sexually
abusing her. On review, the majority holds that the trial
court erred in denying defendant's motion for judgment of
acquittal because the evidence was not legally sufficient to
prove one element of kidnapping. In moving for judgment of
acquittal, however, defense counsel expressly gave up the
issue on which the majority now relies to reverse his convic-
tion. He told the trial court that, as the court knew, "that's
not our issue." He explained that he was not arguing about
specific crimes or their elements. And, consistently with that
position, defendant moved for a judgment of acquittal on all
the charges (not just kidnapping) because no reasonable
juror could find that he was the perpetrator. I would hold
that defense counsel gave up the issue that he now raises on
review and would affirm defendant's kidnapping conviction. I
respectfully dissent from that part of the majority's decision.1

In moving for a judgment of acquittal, defendant
referred to and incorporated arguments that he had made in
his opening statement. It is helpful, in my view, to describe
those arguments briefly to put his motion for judgment of
acquittal in context. The state charged defendant with kid-
napping the victim, sexually abusing her, and unlawful sex-
ual penetration. Throughout the trial, defendant raised one
defense to all those charges: He was not the person who had
committed those offenses. As defense counsel told the trial
court in opening statement, the victim had told the police
that the person who locked her in the room and assaulted her
"was six-foot tall, really skinny, dark brown, almost black
curly hair-long enough to pull it into a pony tail-big bones
that stuck out-cheek bones and chin, and had brown eyes."
Defense counsel explained in opening statement that not one
of his client's physical attributes matched that description
and that a photograph of his client at the time of the alleged

1 The majority also holds that defendant's six convictions for sexual abuse gave
rise to only three punishable offenses. I agree with the majority on that point for
the reasons stated in State v. White, 346 Or 275, 211 P3d 248 (2009) (Kistler, J.,
concurring).

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events would confirm that defendant was not and could not
have been the person whom the victim had described to the
police.

At the close of the state's case-in-chief, the prosecu-
tor gave the trial court, who was sitting as the trier of fact,
the citation to a Court of Appeals case that bore on the kid-
napping charge. The prosecutor explained that "there's only
one case in the State of Oregon with regard to Secreting
Somebody in a Place Not Likely to be Found, and that is
[State v.] Montgomery[, 50 Or App 381, 624 P2d 151 (1980),
rev den, 290 Or 727 (1981)]." The court then recessed for
lunch.

When court resumed, defense counsel moved for a
judgment of acquittal. Counsel began by noting that the pros-
ecutor had referred, before lunch, to Montgomery. Defense
counsel told the trial court that, "although [he] would factu-
ally distinguish the present case from the Montgomery case"
and explained his reasons for doing so, he was basing the
motion for a judgment of acquittal on a different ground. Spe-
cifically, after discussing the issue in Montgomery, defense
counsel told the trial court:

"However, as the Court knows from the entire case from
Opening Statement to now, that's not our issue. Our issue is
not a nit-picking argument regarding specific elements and
specific crimes. We're not arguing about venue. We're not
arguing about intent. We're simply saying that there's
insufficient evidence, as a whole, to-as a tr[i]er of fact-
even in the light most favorable to the State, to believe that
a tr[i]er of fact could beyond a reasonable doubt find that
my client, Mr. Parkins, had anything to do with the alleged
molestation that took place of [the victim], and I believe
that even Detective Green, in his last answer before leaving
the stand, said that the physical descriptions he received
from [the victim], from [the victim's sister], and from a
friend of Mr. Parkins, Nick Olney, did not match
Mr. Parkins.

"The Court has heard more than once from more than
one source, the physical description of the alleged per-
son that committed this crime, and they do not match
Mr. Parkins, and we provided a photograph of Mr. Parkins
that was near in time, at least, to the time that the State is

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now alleging that this took place. And by no means does
that match him in any respect, I would argue."

Defense counsel then raised a question regarding the victim's
credibility and concluded, "[W]e are asking the Court to make
a finding for Judgment of Acquittal."

The trial court ruled:

"That motion will be denied, and I do believe that there's
sufficient evidence on the Kidnapping Count to support the
allegations set forth in the Indictment, particularly the evi-
dence that was brought up by the State, that there were
attempts by [the victim] to seek help and to scream, but
that the Defendant told her that nobody would hear and
nobody would care. And, in light of that evidence, I believe
that that charge is legally sound in this case."

The preservation issue in this case arises in some-
what of an unusual posture, and it is important to be clear
about both the scope of defendant's motion for judgment of
acquittal and the basis for that motion. Defendant did not
limit his motion for judgment of acquittal to the kidnapping
charge. Rather, as defense counsel told the trial court, "Our
issue is not a nit-picking argument regarding * * * specific
crimes." Consistently with that position, the sole basis that
defense counsel advanced in support of the motion for judg-
ment of acquittal was that no reasonable trier of fact could
find that defendant was the person whom the victim had
described to the police. That argument, if correct, would have
entitled defendant to an acquittal on all the charges against
him.

The trial court denied defendant's motion, presuma-
bly because the court concluded that there was sufficient evi-
dence to find that defendant was the perpetrator. The court
then went on to address an issue that defendant had explic-
itly given up-whether the evidence was sufficient for a trier
of fact to find that the state had proved the elements of one of
the crimes, kidnapping, with which defendant was charged.

On review, defendant abandons the issue that he
raised in the trial court. He does not argue on review that the
trial court should have entered a judgment of acquittal on all

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the charges because no reasonable trier of fact could find that
he was the person whom the victim described as the perpe-
trator. Rather, he argues that that no reasonable trier of fact
could find that the state proved the element of kidnapping
that the Court of Appeals had discussed in Montgomery.

Defense counsel, however, expressly gave up that
issue in the trial court. After discussing the issue in
Montgomery, defense counsel told the trial court "that's not
our issue." If that statement were not clear enough, defense
counsel added, "Our issue is not a nit-picking argument
regarding specific elements and specific crimes." In my view,
the only reasonable interpretation of those statements is that
defendant was not directing his motion for a judgment of
acquittal at kidnapping, nor was he arguing that the evi-
dence was insufficient to prove the elements of kidnapping
(or of any of the other charges for that matter). Rather, as
defense counsel explained, his argument was directed to all
the charges and was "simply" that no reasonable trier of fact
could find that defendant matched the victim's description of
the perpetrator.

Defendant argues on review that the issue regarding
the kidnapping charge is preserved because the trial court
was aware of that issue when it ruled on his motion for judg-
ment of acquittal. Defendant notes that the prosecutor had
provided the trial court with a citation to Montgomery before
defendant moved for judgment of acquittal, that defense
counsel later moved for a judgment of acquittal and distin-
guished Montgomery, and that the trial court expressly con-
sidered whether the evidence supported the elements of the
kidnapping charge in denying his motion.

While true, defendant's argument on review fails to
come to terms with a larger principle: A party may not
expressly disclaim reliance on an issue before the trial court
and then seek on appeal to reverse the trial court's ruling on
the very issue that the party just disclaimed. This court has
long recognized that, when a party "indicates" to the trial
court that an issue or ruling is acceptable, that party may not
challenge the ruling on appeal. Clay/Luttrell v. Pay Less
Drug Stores, 276 Or 673, 676-77, 556 P2d 125 (1976). That is

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true even when the trial court has considered the ruling, as in
this case. See id.2 Accordingly, I would hold that defendant's
challenge to his kidnapping conviction is not properly before
us and would affirm that conviction. Defendant's remedy on
that issue should lie, if at all, in post-conviction.

As noted, for the reasons stated in the concurring
opinion in State v. White, 346 Or 275, 211 P3d 248 (2009), I
agree with the majority that the trial court erred in holding
that the six counts of sexual abuse gave rise to six separately
punishable offenses, and I join that part of its decision.
Accordingly, I dissent in part and concur in part in the major-
ity's decision.

2 In Clay / Luttrell, the trial court told the parties that it was changing one of
the instructions that it had planned to give, 276 Or at 675-76, which presumably
means that the trial court had considered the change and determined that it was
legally correct. One of the lawyers for the plaintiffs " 'indicated that the instruc-
tion, as changed was acceptable,' " but the plaintiffs later appealed challenging the
instruction. Id. at 676. This court declined to consider the issue, describing it as
invited error. Id. at 677.