General Provisions

ORS 161.067
Determining punishable offenses for violation of multiple statutory provisions, multiple victims or repeated violations


(1)

When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.

(2)

When the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims. However, two or more persons owning joint interests in real or personal property shall be considered a single victim for purposes of determining the number of separately punishable offenses if the property is the subject of one of the following crimes:

(a)

Theft as defined in ORS 164.015 (“Theft” described).

(b)

Unauthorized use of a vehicle as defined in ORS 164.135 (Unauthorized use of a vehicle).

(c)

Criminal possession of rented or leased personal property as defined in ORS 164.140 (Criminal possession of rented or leased personal property).

(d)

Criminal possession of a rented or leased motor vehicle as defined in ORS 164.138 (Criminal possession of a rented or leased motor vehicle).

(e)

Burglary as defined in ORS 164.215 (Burglary in the second degree) or 164.225 (Burglary in the first degree).

(f)

Criminal trespass as defined in ORS 164.243 (Criminal trespass in the second degree by a guest), 164.245 (Criminal trespass in the second degree), 164.255 (Criminal trespass in the first degree), 164.265 (Criminal trespass while in possession of a firearm) or 164.278 (Criminal trespass at a sports event).

(g)

Arson and related offenses as defined in ORS 164.315 (Arson in the second degree), 164.325 (Arson in the first degree) or 164.335 (Reckless burning).

(h)

Forgery and related offenses as defined in ORS 165.002 (Definitions for ORS 165.002 to 165.070) to 165.070 (Possessing fraudulent communications device).

(3)

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 violations, except that each violation, to be separately punishable 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. Each method of engaging in oral or anal sexual intercourse as defined in ORS 163.305 (Definitions), and each method of engaging in unlawful sexual penetration as defined in ORS 163.408 (Unlawful sexual penetration in the second degree) and 163.411 (Unlawful sexual penetration in the first degree) shall constitute separate violations of their respective statutory provisions for purposes of determining the number of statutory violations. [1987 c.2 §13; 1991 c.386 §9; 2003 c.629 §4; 2007 c.684 §3; 2017 c.318 §1]

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)

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). But see State v. Barrett, 331 Or 27, 10 P3d 901 (2000)

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)

Chapter 161

Notes of Decisions

A juvenile court adjudication of whether or not a child committed acts which would be a criminal violation if committed by an adult must necessarily include an adjudication of all affirmative defenses that would be available to an adult being tried for the same criminal violation. State ex rel Juvenile Dept. v. L.J., 26 Or App 461, 552 P2d 1322 (1976)

Law Review Citations

2 EL 237 (1971); 51 OLR 427-637 (1972)

Chapter 161

Criminal Code

(Generally)

Notes of Decisions

Legislature's adoption of 1971 Criminal Code did not abolish doctrine of transferred intent. State v. Wesley, 254 Or App 697, 295 P3d 1147 (2013), Sup Ct review denied


Source

Last accessed
Jun. 26, 2021