Background
Josue Nehemias Aldana-Olivia was convicted in Washington County Circuit Court of first-degree rape, first-degree sexual abuse, strangulation, first-degree burglary, menacing, interference with making a report, two counts of resisting arrest, and fourth-degree assault — all arising from an hours-long domestic-violence incident against his ex-girlfriend, T. At trial, T testified that defendant had penetrated her vaginally without ejaculating. A responding sergeant testified he did not collect T’s underwear or seek DNA testing because, knowing there was no ejaculation, he did not think it was necessary.
On appeal, defendant raised three assignments of error: (1) that the prosecutor’s rebuttal remarks about the absence of DNA evidence were reversible plain error; (2) that the trial court plainly erred in failing to merge the two resisting-arrest verdicts into a single conviction; and (3) that the trial court improperly imposed a consecutive sentence for first-degree sexual abuse on top of the sentence for first-degree rape.
The case was submitted to the Oregon Court of Appeals in March 2026 as a nonprecedential memorandum opinion under ORAP 10.30.
The Court’s Holding
The court reversed the two resisting-arrest convictions and remanded with instructions to enter a single conviction for one count of resisting arrest and to resentence accordingly. The state conceded the error, and the court accepted the concession, following State v. Birchard, which holds that a defendant who resists a contemporaneous arrest by multiple officers commits only one offense. On all other issues, the court affirmed.
Regarding the prosecutor’s DNA remarks, the court held that the statements were not obviously improper under the plain-error standard of State v. Chitwood. The prosecutor’s assertion that there was “no DNA to test” because the victim reported no ejaculation could reasonably be understood as a reference to testimony already in the record — distinguishing the case from State v. Camirand, where the prosecutor injected facts entirely outside the record. The court also found the remarks did not obviously shift the burden of proof, but could instead be read as permissible rebuttal to defendant’s closing argument about the state’s investigative gaps.
On consecutive sentencing, the court affirmed under ORS 137.123(5)(a), which permits consecutive sentences when the conduct reflects a defendant’s willingness to commit more than one criminal offense. Although defendant challenged the imposition only under ORS 137.123(5)(b), the trial court had independently found — and defendant did not contest — that the evidence supported a (5)(a) finding. T’s testimony that defendant subjected her to multiple distinct sexual acts over several hours supported the conclusion that the sexual abuse was temporally and qualitatively distinct from the rape, not merely incidental to it.
Key Takeaways
- A defendant who resists arrest by multiple officers in a single, continuous incident commits one count of resisting arrest; duplicate convictions must be merged.
- Prosecutorial remarks about missing evidence survive plain-error review if they can reasonably be tied to testimony already in the record, even if inartfully phrased — the test is whether the impropriety is obvious and not reasonably in dispute, not merely possible.
- A consecutive sentence for a sex offense committed during a continuous course of conduct is authorized under ORS 137.123(5)(a) where evidence shows the offenses were temporally and qualitatively distinct acts reflecting a separate willingness to offend, independent of the (5)(b) “greater harm” ground.
- This opinion is nonprecedential under ORAP 10.30 and may be cited only as that rule permits.
Why It Matters
For criminal defense practitioners, the merger holding is a straightforward reminder to scrutinize multi-count resisting-arrest charges whenever officers act in concert during a single arrest event — the state frequently charges one count per officer, but Oregon law recognizes only one offense. The state’s concession here underscores that this is settled law under Birchard.
The court’s treatment of the DNA-evidence remarks illustrates how difficult it is to obtain plain-error relief from prosecutorial statements when the comments can be anchored, even loosely, to record evidence. Prosecutors who reframe missing evidence as consistent with the victim’s account — rather than offering extrinsic explanations — are likely to survive appellate review under the Chitwood/Perez framework. Defense counsel should object contemporaneously to preserve the issue for a less demanding standard of review.