State v. Gerlach, 300 P.3d 193

Defendant convicted of 10 crimes, including two counts of first-degree kidnapping, and appeals merger ruling under ORS 161.067(3).
Trial court held the two kidnapping counts did not merge based on repeated violations and a pause to renounce intent; conviction for two first-degree kidnapping counts stands.
Defendant hit the victim with a stolen car, abducted her, drove to a remote area, and sexually assaulted her before police intervened and rescued her.
Prosecution argued two separate kidnappings—taking from the bicycle location to the sexual assault location, and from there to the rescue location—constituted separate offenses.
Defendant stipulated to all acts alleged; he contends only one kidnapping occurred because kidnapping is a continuing offense; the state contends there were multiple violations under ORS 163.225.
Court concludes kidnapping is a continuing offense; a single deprivation of liberty constitutes a single kidnapping for merger purposes; therefore, the two counts do not merge under ORS 161.067(3) and must be counted as one with remand for resentencing.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Does ORS 161.067(3) prevent merger of two first-degree kidnapping counts?

State v. Rose, 75 Or App 379, 706 P2d 583 (Or. App. 1985) (custodial interference is a continuing offense; interference ends when custody ceases)
State v. Walch, 346 Or 463, 213 P3d 1201 (Or. 2009) (asportation can be minimal and satisfy kidnapping element)
State v. Harelson, 147 Or App 556, 938 P2d 763 (Or. App. 1997) (continuing vs discrete offenses in theft/abuse of a corpse context; custodial interference analogy)
State v. Barnum, 333 Or 297, 39 P3d 178 (Or. 2002) (merger questions for repeated offenses; interrelation with McConville)
State v. McConville, 243 Or App 275, 259 P3d 947 (Or. App. 2011) (relevant to antimerger statute application)