IN RE: D. M. B. (2019)

Youth was found to be within the jurisdiction of the juvenile court for committing an act that, if committed by an adult, would constitute rape in the third degree, ORS 163.355 and sexual abuse in the second degree, ORS 163.415. On appeal, youth argues that the juvenile court plainly erred in failing to merge his adjudication for rape in the third degree into his adjudication for sexual abuse in the second degree. The state concedes that, under ORS 161.067(1) and State v. Breshears, 281 Or. App. 552, 555, 383 P.3d 345 (2016), when the same conduct violates two statutory provisions, they are separately punishable only if each provision requires proof of an element that the other does not, and because “proof of the elements of third-degree rape will necessarily prove the elements of second-degree sexual abuse,” id. at 559, 383 P.3d 345, these adjudications should have merged. See State v. K. R. S., 298 Or. App. 318, 331, 449 P.3d 511 (2019) (juvenile adjudications are subject to merger under ORS 161.067). We agree, accept the state’s concession, and exercise our discretion to correct plain error.

Judgment reversed and remanded for entry of a judgment reflecting adjudication for a single count of second-degree sexual abuse; otherwise affirmed.

PER CURIAM