446 P.3d 26
Or.2019Background
- During a traffic stop police found 27 tenant files in defendant's car containing personal identification information for 27 different persons. Defendant was charged with 27 counts of identity theft (ORS 165.800) and one count of aggravated identity theft (ORS 165.803(1)(d)).
- The aggravated-identity-theft count alleged the defendant violated ORS 165.800 and had custody/possession/control of 10 or more pieces of personal identification from 10 or more different persons (Class B felony). Identity theft is a Class C felony.
- Defendant pleaded guilty to all counts but reserved the right to argue that the 27 identity-theft counts merged into the single aggravated-identity-theft count as lesser-included offenses.
- Trial court refused to merge; Court of Appeals affirmed in part (merging only one count). On review the Oregon Supreme Court considered whether ORS 161.067 requires merger when multiple identity-theft acts are aggregated into one aggravated-identity-theft charge.
- The Supreme Court held that the identity-theft counts are lesser-included offenses of the aggregated aggravated-identity-theft count and therefore must merge under ORS 161.067(1); ORS 161.067(2) does not bar merger because it applies only when the same conduct violates a single statutory provision.
Issues
| Issue | State's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 165.800 and ORS 165.803 are separate statutory provisions for ORS 161.067(1) | They are not separate provisions (because aggravated identity theft is just an aggregation of identity theft) | They are separate crimes; legislature created a distinct aggravated offense | They are separate statutory provisions; legislature intended two crimes with different names, classifications, and punishments (Held: separate) |
| Whether aggravated identity theft under ORS 165.803(1)(d) requires proof of intent to deceive or defraud as to each aggregated piece of identification | Only one identity-theft need be proved plus possession of 10+ IDs; intent for each ID need not be proved | Legislative history and general culpability statutes require intent (identity theft element) for each aggregated ID | Agreed with defendant: state must prove culpable mental state for each material element (intent to deceive or defraud for each ID), so component identity-thefts are lesser-included offenses of the aggravated offense (Held: proof required) |
| Whether ORS 161.067(1) requires merger of the identity-theft counts into the aggravated count when the aggravated count was based on aggregated identity thefts | ORS 161.067(1) does not require full merger because ORS 161.067(2) creates an exception for multiple victims | ORS 161.067(1) applies and mandates merger when the lesser offense's elements are subsumed in the greater | ORS 161.067(1) governs and requires merger because the identity-theft counts are lesser-included offenses of the aggregated aggravated count (Held: merge) |
| Whether ORS 161.067(2) precludes merger when multiple victims are involved | ORS 161.067(2) applies broadly; "though" means "even if," so multiple victims produce as many punishable offenses as victims, even if multiple statutes are violated | ORS 161.067(2) applies only when the same conduct violates a single statutory provision ("though" = "while"), so it does not block merger here | ORS 161.067(2) applies only when the same conduct violates only one statutory provision; it does not apply where conduct violates separate statutes, so it does not preclude merger here (Held: does not preclude merger) |
Key Cases Cited
- State v. White, 341 Or. 624 (discusses scope and application of ORS 161.067)
- State v. Crotsley, 308 Or. 272 (historical discussion of merger statutes and legislative intent)
- State v. Tucker, 315 Or. 321 (merger where one offense is lesser-included of another)
- State v. Barrett, 331 Or. 27 (analysis of aggravating circumstances and elements in merger questions)
- Blockburger v. United States, 284 U.S. 299 (federal test for whether one statutory provision is a lesser-included offense of another)
- State v. Fujimoto, 266 Or. App. 353 (Court of Appeals decision finding component thefts merged into organized/aggravated theft when aggregated)
- State v. Chappell, 286 Or. App. 679 (Court of Appeals recognizing that aggregated lesser offenses can be subsumed by an aggravated theft count)
- State v. Nix, 355 Or. 777 (discusses relationship and history between former ORS 161.062 and ORS 161.067)