State v. Pass

Defendant, who was convicted of one count of second-degree sexual abuse (Count 2), ORS 163.425, one count of third-degree sodomy (Count 3), ORS 163.385, and two counts of third-degree sexual abuse (Counts 4 and 5), ORS 163.415, appeals, arguing that the trial court plainly erred in failing to merge Counts 2 and 3.1 We conclude that, under the reasoning of State v. Ofodrinwa, 353 Or 507, 300 P3d 154 (2013) — in which the Supreme Court concluded that a victim’s incapacity to consent due to minority is included in “the victim does not consent” element of second-degree sexual abuse — defendant’s…