State v. Summers

No. 928 October 7, 2026 455 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. JOHN LEE SUMMERS III, aka John Lee Mccool, Defendant-Appellant. Multnomah County Circuit Court 23CR53494; A185046 Adrian L. Brown, Judge. Argued and submitted September 8, 2026. James Brewer, Deputy Public Defender, argued the cause for appellant. Also on the brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Oregon Public Defense Commission. Megan Mizuta, Assistant Attorney General, argued the cause for respondent. Also on the brief were Dan Rayfield, Attorney General, and Paul L. Smith, Solicitor General. Before Aoyagi, Presiding Judge, Kamins, Judge, and Pagán, Judge. AOYAGI, P. J. Affirmed. 456 State v. Summers Cite as 353 Or App 455 (2026) 457 AOYAGI, P. J. Defendant appeals two convictions for fourth-degree assault, ORS 163.160, arguing in his sole assignment of error that the trial court erred in failing to merge the ver- dicts into a single conviction. ORS 161.067(3) requires the merger of guilty verdicts for two crimes occurring in the same criminal episode that violate the same statute and involve the same victim, unless “separated * * * by a suffi- cient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent.” It is undisputed that this case involves two violations of the same statute involving the same victim; only the existence of a “sufficient pause” is in dispute. As explained below, we conclude that the trial court did not err in concluding that there was a sufficient pause to avoid merger under ORS 161.067(3) and therefore affirm. T, a safety and security liaison at Central City Concern (a supportive housing provider), responded to a coworker’s request for help at a transitional housing location where defendant had been staying. T was accompanied by his partner, Fernandes. When they arrived, defendant was in the building lobby, screaming, cussing, and threatening an employee. He wanted to get his belongings and leave. T directed another employee to go retrieve defendant’s things. Defendant continued “hollering and cussing,” however, and moved toward the doorway leading to the kitchen and the residential area. T blocked the doorway with his body and told defen- dant multiple times that he needed to wait outside and that staff were getting his belongings. Defendant insisted on getting them himself. He tried to duck under T’s arm, was pulled back by T and Fernandes, and then persisted in trying to push past T, who kept holding him at arm’s length. While holding defendant off, T called the police. Defendant continued to try to get past T, culminating in an unsuccessful lunge toward the kitchen. There followed a period of talking, until Fernandes grabbed defendant by his jacket and pulled him back, at which point defendant spun and directed his ire toward Fernandes. T seized that opportunity to grab defendant from behind in a bear hug, 458 State v. Summers Fernandes then bear-hugged him from the front, and T and Fernandes together wrestled defendant out the front door of the building. Once outside, T and Fernandes released defen- dant, creating a distance of approximately four feet between them, then stood between him and the door. Defendant con- tinued to cuss and threaten them, lunged toward the door, was pushed back by T, struck T in the face, moved toward Fernandes while holding onto T, bit T in the shoulder during the ensuing struggle, and then was pulled to the ground by Fernandes and T. The police arrived and arrested defendant. Based on the foregoing conduct, defendant was charged with two counts of fourth-degree assault.1 Count 3 was based on defendant striking T while inside the building. Although it is not clearly visible on the security video, as the parties acknowledged at oral argument, T testified that defendant struck him in the chest and neck five or six times while they were inside in the doorway, before or during the “lunge” mentioned above, causing him pain for the next day or so. Count 2 was based on defendant biting T on the shoul- der while outside the building. A jury found defendant guilty of both counts. At sen- tencing, defendant argued that the two verdicts should merge because it was one continuous fight without a sufficient pause for separate convictions. The state maintained that there was a sufficient pause. The trial court agreed with the state. It reasoned that, although the interaction between defendant and the Central City Concern staff was “heated” and a “bit chaotic” with “a lot of yelling, a lot of harsh words,” there was “an opportunity” between the two assaults for defendant to “stop, regain composure and renounce his intent.” Defendant appeals, challenging the merger ruling. We review merger rulings for legal error. State v. Rich, 349 Or App 48, 60, 591 P3d 1241 (2026). In doing so, we are bound by the trial court’s factual findings if supported by constitutionally sufficient evidence in the record. Id. “The duration of a pause and what occurred during that pause are questions of fact, while the question of whether the pause is ‘sufficient’ to allow for multiple convictions is one of law.” Id. 1 He was also charged with first-degree burglary, but that count was dis- missed before trial. Cite as 353 Or App 455 (2026) 459 ORS 161.067 governs merger. As relevant here, it provides: “When the same conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involves repeated violations of the same statutory provision against the same victim, there are as many separately punishable offenses as there are viola- tions, except that each violation, to be separately punish- able under this subsection, must be separated from other such violations by a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent. * * *.” ORS 161.067(3) (emphasis added). It is the state’s burden to prove facts establishing a sufficient pause to avoid merger. Rich, 349 Or App at 60. “A sufficient pause is a temporary or brief cessa- tion 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.” Id. (internal quotation marks omitted). “In determining whether a ‘sufficient pause’ occurred, a court must consider the evidence regarding the duration of any pause, what happened during the pause, and whether the defendant’s criminal conduct was ‘qualitatively different’ before and after the pause.” Id. (quoting State v. Lasheski, 309 Or App 140, 146, 481 P3d 966 (2021)); see also State v. Bock, 346 Or App 656, 663-64, 587 P3d 10, rev den, 375 Or 332 (2026) (explaining that the “sufficient pause” analysis focuses on the “intervening events” between the offenses in question). With respect to assault, the “mere passage of time, by itself,” does not establish a sufficient pause to avoid merger. State v. Sanders, 185 Or App 125, 130, 57 P3d 963 (2002), modified on recons, 189 Or App 107, 74 P3d 1105 (2003), rev den, 336 Or 657 (2004). Rather, “where a defen- dant has been found guilty on multiple counts of assault arising from the same criminal episode and involving the same victim, the court must merge those guilty verdicts unless the state proves that one assault ended before the other began.” State v. Watkins, 236 Or App 339, 348, 236 P3d 770, rev den, 349 Or 480 (2010) (internal quotation marks omitted). 460 State v. Summers Here, the surveillance videos show, and the par- ties agree, that there was a temporal break between defen- dant’s two assaults on T. The parties’ disagreement turns on whether that temporary cessation in assaultive conduct was “so marked in scope or quality” as to afford defendant the opportunity to renounce his criminal intent. Defendant argues that it was not, analogizing to Watkins, whereas the state argues that it was, analogizing to State v. Aitken, 255 Or App 17, 296 P3d 587, rev den, 353 Or 867 (2013), and State v. King, 261 Or App 650, 322 P3d 597 (2014). In Watkins, the defendant was a prison inmate who attacked a correction officer with a handmade knife. 236 Or App at 341. The defendant stabbed the officer several times before the officer was able to kick him away and acti- vate a waistband alarm to summon help. Id. The defendant watched the officer activate the alarm, which took three to four seconds, then resumed the attack and the stabbing. Id. He ultimately stabbed the officer a total of seven times. Id. The defendant was charged with numerous crimes, includ- ing seven counts of second-degree assault (one for each stab), and found guilty on all counts. Id. At sentencing, after hear- ing the parties’ merger arguments, the trial court entered seven separate assault convictions. Id. at 342-44. The court expressed “concerns that there is no showing of sufficient pause” but accepted the prosecutor’s argument that separate convictions were permitted as long as the sentences were concurrent. Id. at 343-44 (emphasis omitted). On appeal, we held that it was error not to merge the seven assault ver- dicts into a single conviction. Id. at 348. We explained that the only temporal break at all was the three to four seconds after the officer kicked the defendant off him, and we agreed with the trial court’s own express determination that that was not a sufficient pause to avoid merger. Id. (explaining that it would be improper to enter even two convictions under the circumstances). Aitken involved a multi-victim incident. 255 Or App at 19. The defendant in that case was staying with his sister, Davis, at her apartment. Id. at 18. Torres went to the apart- ment to pick up her daughter Taylor, who was visiting with the defendant, and, on entering, saw the defendant attempt Cite as 353 Or App 455 (2026) 461 to strike Taylor. Id. Torres ran to stop him, and the defen- dant stabbed Torres in the neck and stomach. Id. The defen- dant then threatened Davis, who called her fiancé, Walker, into the room. Id. The defendant stabbed Walker twice in the back and yelled that everyone should mind their own business. Id. Torres yelled that her daughter was her busi- ness, at which point defendant started coming after Torres again. Id. Walker stepped between them and held the defen- dant back. Id. In the ensuing scuffle between the two men, the defendant stabbed both of Walker’s arms. Id. As relevant here, the defendant was found guilty of four counts of assault as to Walker, which the trial court merged into two convictions, one for the back stabs and one for the arm stabs. Id. at 19-20. The court refused to fur- ther merge the verdicts, stating that there had been a “sub- stantial opportunity to stop, renounce criminal intent.” Id. at 20. We affirmed. We explained that the trial court’s fac- tual findings were binding on appeal if supported by any evidence, whereas “the ultimate issue, i.e., the application of ORS 161.067(3), is a matter of law.” Id. at 23. With that in mind, we concluded that the “substantial opportunity” find- ing was binding because it was supported by evidence in the record, specifically “testimony of both Davis and Walker describing two incidents—defendant’s stabbing of Walker’s back and defendant’s stabbing of Walker’s arms—as sepa- rate altercations initiated after separate motivations.” Id. at 22-23 (footnote omitted). Given the facts found, the trial court did not commit legal error in applying the anti-merger statute as it did and entering two assault convictions as to Walker. Id. at 23-24. In King, the defendant punched a bar employee in the face, they grappled, and the employee managed to wrestle the defendant to the ground and restrain him. 261 Or App at 651, 656. One of the defendant’s friends then attacked the employee from behind, allowing the defendant to break free. Id. at 651. The employee threw off the friend, at which point the defendant picked up a bar stool and hit the employee with it, then hit and kicked the employee while the friend choked him. Id. The trial court entered two sep- arate assault convictions, one for the initial punch and one 462 State v. Summers for the later hitting with the bar stool, hitting with hands, and kicking. Id. at 656. The defendant argued that it was error not to merge the assault verdicts, but we disagreed and affirmed. Id. at 651, 656. We explained that “something of significance” occurred between the two assaults—the defendant was subdued by the victim and restrained on the ground, at which point he “should have just stopped.” Id. at 656. Instead, on being freed, he got off the ground and “reen- tered the fray,” initiating a new round of assaultive conduct. Id. The first assault had ended when the victim got the bet- ter of the defendant and restrained him on the ground, at which point the defendant had an opportunity to renounce his criminal intent, but the defendant chose not to take that opportunity and instead, upon being freed, “joined with his friend in a two-on-one assault on the victim.” Id. It was not error to enter separate convictions on those facts. Id. In this case, we agree with the state that the cir- cumstances are more akin to those in Aitken and King than Watkins. Again, in assessing whether there was a “sufficient pause,” which is ultimately a legal question to be answered based on the facts as found, we “must consider the evidence regarding the duration of any pause, what happened during the pause, and whether the defendant’s criminal conduct was ‘qualitatively different’ before and after the pause.” Rich, 349 Or App at 60 (quoting Lasheski, 309 Or App at 146). Here, as to the duration of the pause between the two assaults on T, although it is difficult to quantify pre- cisely on this record, it was certainly longer than the three- to-four seconds in Watkins and appears more like the short but nonetheless material amount of time that would have passed in Aitken and King. As for what happened during the pause, there was a period of mostly verbal arguing in the hallway as T held defendant off with his arm, then things escalated again when Fernandes pulled on defendant’s jacket and Fernandes and T bear-hugged him and wres- tled him outside. Fernandes and T then released defendant, providing a natural opportunity for him to stop and reas- sess. Instead of taking that opportunity, defendant resumed arguing and moving toward T, T resumed holding him off, Cite as 353 Or App 455 (2026) 463 and defendant struck T and then bit him. Finally, defendant maintains that his criminal conduct was qualitatively the same before and after the pause, and the state does not con- tend otherwise. Ultimately, we are persuaded that the pause was sufficient to allow the entry of two separate convictions. Everything occurred in one criminal episode, during which the parties remained in nearly constant physical contact, and defendant’s emotions remained high, making this a relatively close case. However, the temporary cessation in assaultive conduct by defendant was marked enough in scope or quality to afford defendant the opportunity to renounce his criminal intent. When defendant was success- fully removed from the building (thus achieving T’s stated goal of defendant waiting outside) and physically released, he had the opportunity to stop fighting, renounce his assaul- tive intent, and simply wait outside for his belongings as instructed. Instead, once freed, he chose to reengage and initiate new assaultive conduct against T. On this record, the court could find that one assault ended before the other began. Affirmed.