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]

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)

161.005
Short title
161.015
General definitions
161.025
Purposes
161.035
Application of Criminal Code
161.045
Limits on application
161.055
Burden of proof as to defenses
161.067
Determining punishable offenses for violation of multiple statutory provisions, multiple victims or repeated violations
161.085
Definitions with respect to culpability
161.095
Requirements for criminal liability
161.105
Culpability requirement inapplicable to certain violations and offenses
161.115
Construction of statutes with respect to culpability
161.125
Drug or controlled substance use or dependence or intoxication as defense
161.150
Criminal liability described
161.155
Criminal liability for conduct of another
161.160
Exclusion of defenses to criminal liability for conduct of another
161.165
Exemptions to criminal liability for conduct of another
161.170
Criminal liability of corporations
161.175
Criminal liability of an individual for corporate conduct
161.190
Justification as a defense
161.195
“Justification” described
161.200
Choice of evils
161.205
Use of physical force generally
161.209
Use of physical force in defense of a person
161.215
Limitations on use of physical force in defense of a person
161.219
Limitations on use of deadly physical force in defense of a person
161.225
Use of physical force in defense of premises
161.229
Use of physical force in defense of property
161.233
Use of physical force by peace officer
161.237
Use of physical force involving pressure on throat or neck by peace officer or corrections officer
161.242
Use of deadly physical force by peace officer
161.245
“Reasonable belief” described
161.249
Use of physical force by private person assisting an arrest
161.255
Use of physical force by private person making citizen’s arrest
161.260
Use of physical force in resisting arrest prohibited
161.265
Use of physical force by guard or peace officer employed in correctional facility
161.267
Use of physical force by corrections officer or official employed by Department of Corrections
161.270
Duress
161.275
Entrapment
161.290
Incapacity due to immaturity
161.295
Effect of qualifying mental disorder
161.300
Evidence of qualifying mental disorder admissible as to intent
161.305
Qualifying mental disorder as affirmative defense
161.309
Notice of mental defense
161.313
Jury instructions
161.315
Right of state to obtain mental examination of defendant
161.319
Form of verdict on guilty except for insanity
161.325
Finding of guilty except for insanity
161.326
Notice to victim
161.327
Commitment or conditional release of person found guilty except for insanity of felony
161.328
Commitment of person found guilty except for insanity of misdemeanor
161.329
Order of discharge
161.332
“Conditional release” defined
161.336
Conditional release by board
161.341
Application for discharge or conditional release
161.346
Hearings on discharge, conditional release, commitment or modification
161.348
Judicial review
161.349
Person committed under ORS 161.315 to 161.351 sentenced to term of incarceration
161.351
Discharge by board
161.355
Definitions
161.360
Qualifying mental disorder affecting fitness to proceed
161.362
Requirements for recommendations, determinations and orders
161.365
Procedure for determining issue of fitness to proceed
161.367
Gaining or regaining fitness
161.370
Determination of fitness to proceed
161.371
Procedures upon commitment of defendant
161.372
Involuntary administration of medication for fitness to proceed
161.373
Records for fitness to proceed examination
161.375
Escape of person placed at hospital or facility
161.385
Psychiatric Security Review Board
161.387
Board to implement policies
161.390
Rules for assignment of persons to state mental hospitals or secure intensive community inpatient facilities
161.392
Certification of psychiatrists and licensed psychologists
161.395
Subpoena power
161.397
Psychiatric Security Review Board Account
161.398
Restorative justice program
161.400
Leave of absence
161.405
“Attempt” described
161.425
Impossibility not a defense
161.430
Renunciation as a defense to attempt
161.435
Solicitation
161.440
Renunciation as defense to solicitation
161.450
“Criminal conspiracy” described
161.455
Conspiratorial relationship
161.460
Renunciation as defense to conspiracy
161.465
Duration of conspiracy
161.475
Defenses to solicitation and conspiracy
161.485
Multiple convictions barred in inchoate crimes
161.505
“Offense” described
161.515
“Crime” described
161.525
“Felony” described
161.535
Classification of felonies
161.545
“Misdemeanor” described
161.555
Classification of misdemeanors
161.566
Misdemeanor treated as violation
161.568
Misdemeanor treated as violation
161.570
Felony treated as misdemeanor
161.585
Classification of certain crimes determined by punishment
161.605
Maximum terms of imprisonment for felonies
161.610
Enhanced penalty for use of firearm during commission of felony
161.615
Maximum terms of imprisonment for misdemeanors
161.620
Sentences imposed upon waiver
161.625
Fines for felonies
161.635
Fines for misdemeanors
161.645
Standards for imposing fines
161.655
Fines for corporations
161.665
Costs
161.675
Time and method of payment of fines, restitution and costs
161.685
Effect of nonpayment of fines, restitution or costs
161.705
Reduction of certain felonies to misdemeanors
161.710
Reduction of certain felony driving offenses after completion of sentence
161.715
Standards for discharge of defendant
161.725
Standards for sentencing of dangerous offenders
161.735
Procedure for determining whether defendant dangerous
161.737
Sentence imposed on dangerous offender as departure from sentencing guidelines
161.740
Sentencing of juvenile offenders
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