Determining punishable offenses for violation of multiple statutory provisions, multiple victims or repeated violations
Source:
Section 161.067 — Determining punishable offenses for violation of multiple statutory provisions, multiple victims or repeated violations, https://www.oregonlegislature.gov/bills_laws/ors/ors161.html.
Notes of Decisions
Under former similar statute (ORS 161.062)
This section clearly shows legislative intent to permit separate convictions for burglary and any crime that burglar intended to commit within building entered except theft or criminal mischief if pleaded as the intended crime and rape was far different from theft or criminal mischief. State v. Pritchett, 90 Or App 342, 752 P2d 331 (1988), Sup Ct review denied
To determine whether convictions merge, court must determine whether: 1) defendant engaged in acts that were same conduct or criminal episode; 2) acts violated two or more statutory provisions; and 3) each statutory provision requires proof of element other provisions do not require. State v. Crotsley, 94 Or App 347, 765 P2d 818 (1988), aff’d 308 Or 272, 779 P2d 600 (1989); Martinez v. Cain, 366 Or 136, 458 P3d 670 (2020)
Attempted murder and attempted assault counts merge with attempted aggravated felony murder count, necessitating remand for entry of single judgment of conviction on latter charge. State v. Fox, 98 Or App 356, 779 P2d 197 (1989), Sup Ct review denied
Subcategories of statute setting forth alternative methods of committing offense are not separate “statutory provisions” and do not create separately punishable offenses. State v. Kizer, 308 Or 238, 779 P2d 604 (1989); State v. Wright, 150 Or App 159, 945 P2d 1083 (1997), Sup Ct review denied; State v. Barrett, 331 Or 27, 10 P3d 901 (2000)
Robbing co-owners of store constituted two crimes because each of owners was victim of robbery. State v. Green, 113 Or App 373, 833 P2d 311 (1992), Sup Ct review denied
Trial court erred in sentencing defendant separately on aggravated murder, robbery and burglary because robbery and burglary are lesser included offenses of aggravated murder. State v. Tucker, 315 Or 321, 845 P2d 904 (1993); Martinez v. Cain, 366 Or 136, 458 P3d 670 (2020)
Where statute describes single crime that may be accomplished by any of several means, actions against single victim that include more than one means of committing crime provide grounds for single conviction on multiple counts of violation of single statutory provision. State v. Beason, 170 Or App 414, 12 P3d 560 (2000), Sup Ct review denied
In general
In case of burglary in the first degree committed with intent to commit crime of theft, burglary and subsequent theft are separately punishable offenses, because this section impliedly repealed merger requirement of [former] ORS 161.062. State v. Cheney, 92 Or App 633, 759 P2d 1119 (1988)
Intended victims of conspiracy to commit particular crimes are “victims,” and trial court properly refused to merge nine convictions of conspiracy to commit forgery of checks, where there were nine intended victims (banks where checks were to be cashed). State v. Graves, 92 Or App 642, 759 P2d 1121 (1988)
Offenses do not merge if proof of each offense requires proof of element others do not. State v. Atkinson, 98 Or App 48, 777 P2d 1010 (1989); State v. Zuniga-Ocegueada, 111 Or App 54, 824 P2d 427 (1992), Sup Ct review denied
Merger of convictions under this section is controlled by statute defining offense, not by factual circumstances. State v. Atkinson, 98 Or App 48, 777 P2d 1010 (1989); State v. Heneghan, 108 Or App 637, 816 P2d 1175 (1991), Sup Ct review denied;
State v. Nunn, 110 Or App 96, 821 P2d 431 (1991), Sup Ct review denied; State v. Wallock/Hara, 110 Or App 109, 821 P2d 435 (1991), Sup Ct review denied
Where plain language of this section precludes merging offenses of robbery and theft and there were two victims of defendant’s offenses, defendant committed separately punishable offenses. State v. Owens, 102 Or App 448, 795 P2d 569 (1990), Sup Ct review denied
Conviction for sexual abuse in second degree does not merge with conviction for rape in first degree. State v. Mezick, 109 Or App 563, 820 P2d 849 (1991)
Trial court did not err when it refused to merge convictions for attempted murder and attempted assault because each crime includes element not included in other. State v. Gilbertson, 110 Or App 152, 822 P2d 716 (1991), Sup Ct review denied
Convictions for possession of controlled substance and delivery of controlled substance under [former] ORS 475.992 do not merge as matter of law because it is possible to commit crime of delivery without having possessory interest in controlled substance; overruling to extent of inconsistency, State v. Ford, 107 Or App 364, 812 P2d 13 (1991), State v. Drummond, 107 Or App 247, 810 P2d 413 (1991), State v. Wigglesworth, 107 Or App 239, 810 P2d 411 (1991), State v. Garcia, 104 Or App 453, 801 P2d 894 (1990), State v. Jaques, 100 Or App 611, 788 P2d 461 (1990), State v. Clark, 98 Or App 478, 779 P2d 215 (1989), State v. Burlew, 95 Or App 398, 768 P2d 447 (1989), State v. McNamer, 80 Or App 418, 722 P2d 51 (1986), State v. Iles, 79 Or App 586, 719 P2d 519 (1986) and State v. Finn, 79 Or App 439, 719 P2d 898 (1986). State v. Sargent, 110 Or App 194, 822 P2d 726 (1991)
When defendant locked girl in sleeping compartment of truck and drove truck with girl inside compartment for 20 to 30 minutes, trial court did not err in not merging two first degree kidnapping convictions. State v. O’Neall, 115 Or App 62, 836 P2d 758 (1992), Sup Ct review denied
Manslaughter in second degree is not lesser included offense of felony murder. State v. Burnell, 129 Or App 105, 877 P2d 1228 (1994)
In determining whether convictions merge, statutory elements of each offense are examined without regard to underlying factual circumstances alleged in indictment. State v. Sumerlin, 139 Or App 579, 913 P2d 340 (1996); Jones v. State of Oregon, 246 Or App 253, 265 P3d 75 (2011), Sup Ct review denied
Violation of multiple offense subcategories under [former] ORS 475.996 (controlled substances) in committing same act does not create multiple offenses. State v. Wright, 150 Or App 159, 945 P2d 1083 (1997), Sup Ct review denied
Merger occurs where single violation involves multiple victims, but not where single act results in multiple violations. State v. Wise, 150 Or App 449, 946 P2d 363 (1997)
Conviction for attempt to commit greater offense does not merge with conviction for commission of lesser included offense arising out of same conduct. State v. O’Hara, 152 Or App 765, 955 P2d 313 (1998), Sup Ct review denied
To determine whether convictions merge, court must determine whether: 1) defendant engaged in acts that were same conduct or criminal episode; 2) acts violated two or more statutory provisions; and 3) each statutory provision requires proof of element other provisions do not require. State v. Spring, 172 Or App 508, 21 P3d 657 (2001), Sup Ct review denied
Two or more parts of statute are separate “statutory provisions” if parts address separate legislative concerns. State v. Johnson, 174 Or App 27, 25 P3d 353 (2001), Sup Ct review denied
Where person commits offense of aggravated murder based upon multiple theories, counts merge into single conviction with separate aggravating factors. State v. Walraven, 187 Or App 728, 69 P3d 835 (2003), Sup Ct review denied
Convictions for offense and true lesser included offense merge. State v. Sanders, 189 Or App 107, 74 P3d 1105 (2003), Sup Ct review denied
“Victims” refers to category of persons who are victims within meaning of specific substantive statute defining relevant offense. State v. Glaspey, 337 Or 558, 100 P3d 730 (2004)
State is not “victim” for purposes of statutory violation involving multiple victims. State v. Camarena-Velasco, 207 Or App 19, 139 P3d 979 (2006)
Since property owner is sole victim of first degree arson (ORS 164.325), multiple counts based on single act exposing multiple entities to risk of physical injury or other secondary consequences merge. State v. Luers, 211 Or App 34, 153 P3d 688 (2007), modified 213 Or App 389, 160 P3d 1013 (2007)
For purpose of determining whether burglary involved multiple victims, victim of burglary is person who owns violated property interest. State v. Sanchez-Alfonso, 224 Or App 556, 198 P3d 946 (2008), Sup Ct review denied
Evidence of distinct legislative concerns, alone, is not sufficient to establish legislature’s intent to create two crimes. State v. White, 346 Or 275, 211 P3d 248 (2009)
Sufficient pause means temporary or brief cessation of defendant’s criminal conduct that occurs between repeated violations and that has scope or quality that affords defendant opportunity to renounce criminal intent. State v. Huffman, 234 Or App 177, 227 P3d 1206 (2010)
Because the crime is one against public order, defendant commits only one act of resisting arrest when he or she resists multiple officers acting in concert to take defendant into custody. State v. Birchard, 251 Or App 223, 284 P3d 1153 (2012)
Where defendant is convicted of fourth-degree and second-degree assaults of same victim with no evidence of temporal pause between assaultive acts, guilty verdicts merge. State v. Glazier, 253 Or App 109, 288 P3d 1007 (2012), Sup Ct review denied
For purposes of determining joint ownership under this statute, any person whose right to possession of vehicle is superior to that of taker, obtainer or withholder of vehicle is victim of crime of unauthorized use of vehicle. State v. Haney, 256 Or App 506, 301 P3d 445 (2013)
Where defendant is convicted of second-degree sexual abuse under ORS 163.425 and third-degree sodomy under ORS 163.385, guilty verdicts merge under this section because victim’s minority age prevented victim from being able to consent and “does not consent” element of ORS 163.425 encompasses victim’s age element in ORS 163.385. State v. Pass, 264 Or App 583, 333 P3d 1139 (2014)
Where defendant was convicted of first-degree robbery under ORS 161.610 and 164.415 and second-degree robbery under ORS 161.610 and 164.405, and one count of second-degree robbery under ORS 164.405 included element that defendant was “aided by another person present” that count does not merge into others under this section because “another person” element is unique and requires proof that other elements do not. State v. Burris, 270 Or App 512, 348 P3d 338 (2015)
Where defendant was found guilty of witness tampering based on letter defendant sent to defendant’s mother encouraging mother and brother either to not testify against defendant or to change their stories, guilty verdicts merge under this section because, although witness tampering counts involved two different witnesses, state was only victim of witness tampering. State v. Jenkins, 280 Or App 691, 383 P3d 395 (2016), Sup Ct review denied
Where defendant was found guilty of witness tampering based on single letter defendant sent to defendant’s mother encouraging mother and brother either to not testify against defendant or to change their stories, guilty verdicts merge under this section because violations of two different paragraphs of ORS 162.285 do not constitute violations of separate statutory provisions. State v. Jenkins, 280 Or App 691, 383 P3d 395 (2016), Sup Ct review denied
Where defendant was convicted of two counts of sexual abuse in first degree and one count of sexual abuse in third degree involving three different body parts, separate acts constituted “same conduct.” State v. Nelson, 282 Or App 427, 386 P3d 73 (2016); State v. Dugan, 282 Or App 768, 387 P3d 439 (2016)
Where defendant committed three acts of sexual conduct constituting sexual abuse of one victim in confined space without interruption by significant event or pause in defendant’s aggression, there was no “sufficient pause” as used in this section. State v. Nelson, 282 Or App 427, 386 P3d 73 (2016)
Minor receiving marijuana is victim for purposes of crime of delivering marijuana to minor. State v. McMillin, 291 Or App 707, 422 P3d 270 (2018), Sup Ct review denied
Felony fourth-degree assault under ORS 163.160 and first-degree assault under ORS 163.185 each require proof of element that other crime does not, and trial court erred by merging guilt determinations based on same conduct. State v. Cazarez-Lopez, 295 Or App 349, 434 P3d 468 (2018), Sup Ct review denied
Merger applies in delinquency adjudications in same way as in determinations of guilt in criminal cases. In re K.R.S., 298 Or App 318, 449 P3d 511 (2019)
Because reckless driving under ORS 811.140 does not contain any element not required to prove reckless endangerment of highway workers under ORS 811.231, where charged counts are based on same conduct, guilty verdicts for two offenses merge. State v. Smythe, 298 Or App 821, 448 P3d 693 (2019)
Because defendant committed acts named in two counts in indictment against same victim in single criminal episode and acts were not separated by sufficient pause to allow defendant opportunity to renounce criminal intent, this section requires counts to be merged into single conviction of second-degree sexual abuse for purposes of sentencing. State v. Dearmitt, 299 Or App 22, 448 P3d 1163 (2019)
Where defendant’s conduct violates two separate statutory provisions -- identity theft and aggravated identity theft -- this section does not apply and lesser-included offenses of identity theft merge into aggravated identity theft. State v. Gensitskiy, 365 Or 263, 446 P3d 26 (2019)
Because proving elements of fourth-degree assault does not necessarily prove all elements of strangulation, charges for crimes do not merge. State v. Merrill, 303 Or App 107, 463 P3d 540 (2020), adhered to as modified on other grounds, 309 Or App 68, 481 P3d 441 (2021), Sup Ct review denied
Change in means of communication from text messages to voicemails does not demonstrate sufficient pause between acts to make acts separately punishable. State v. Zachery, 304 Or App 476, 467 P3d 827 (2020)
Thirty minutes between contacts by phone is sufficient pause between acts to make acts separately punishable. State v. Zachery, 304 Or App 476, 467 P3d 827 (2020)
Defendant’s imprecise and even mistaken shorthand reference to merger of sentences rather than merger of convictions was understood by court, had been used previously by courts and did not impede preservation of merger issue for appeal. State v. Rice, 307 Or App 274, 476 P3d 961 (2020)
Merger is precluded where defendant’s intervening conduct is intertwined with two counts sought to be merged and assists defendant in achieving overall criminal objective. State v. Bradley, 307 Or App 374, 477 P3d 409 (2020), as modified by 309 Or App 598, 483 P3d 717 (2021)
Where defendant was charged with second-degree burglary under ORS 164.215, merger of convictions was not permitted for first-degree trespass under ORS 164.255, which requires proof of unlawful entry into “dwelling,” and conviction for second-degree burglary, which requires proof of unlawful entry into “building” with intent to commit crime, because each provision requires proof of element that other provision does not. State v. Jackson, 313 Or App 708, 495 P3d 171 (2021), Sup Ct review denied
Where defendant communicated online with police officer posing as child’s parent in sting operation, this section did not authorize entry of defendant’s separate convictions based on multiple victims, because victims were fictitious rather than actual children. State v. Street, 317 Or App 1, 505 P3d 425 (2022)
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