2015 ORS 161.067¹
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 deviate 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]

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 (Arson in the first degree)), 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 (Sexual abuse in the second degree) and third-de­gree sodomy under ORS 163.385 (Sodomy in the third degree), 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 (Sexual abuse in the second degree) encompasses victim's age ele­ment in ORS 163.385 (Sodomy in the third degree). State v. Pass, 264 Or App 583, 333 P3d 1139 (2014)

Where defendant was convicted of first-de­gree robbery under ORS 161.610 (Enhanced penalty for use of firearm during commission of felony) and 164.415 (Robbery in the first degree) and sec­ond-de­gree robbery under ORS 161.610 (Enhanced penalty for use of firearm during commission of felony) and 164.405 (Robbery in the second degree), and one count of sec­ond-de­gree robbery under ORS 164.405 (Robbery in the second degree) 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)

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

  • Ryan Scott, Dec 5, 2012
    “There have been some great merger develop­ments in the past five years. And there are a few open ques­tions left. . . . [T]his is the big one: since merger can be defeated by a demonstra­tion of separate victims, what about those crimes (ID Theft, ECSA) where sometimes the victim is a real per­son and sometimes it's the state?”

1 Legislative Counsel Committee, CHAPTER 161—General Provisions, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ors161.­html (2015) (last ac­cessed Jul. 16, 2016).
 
2 Legislative Counsel Committee, Annotations to the Oregon Revised Stat­utes, Cumulative Supplement - 2015, Chapter 161, https://­www.­oregonlegislature.­gov/­bills_laws/­ors/­ano161.­html (2015) (last ac­cessed Jul. 16, 2016).
 
3 OregonLaws.org assembles these lists by analyzing references between Sections. Each listed item refers back to the current Section in its own text. The result reveals relationships in the code that may not have otherwise been apparent.