State v. Haddon, 399 P.3d 458

Defendant used a stolen credit card to make two separate unauthorized purchases on different dates and at different locations.
For each use, defendant was charged with two offenses: identity theft (ORS 165.800) and fraudulent use of a credit card (ORS 165.055); she was convicted on both counts for each date (Counts 1–4) and also convicted of third-degree theft (Count 5).
At sentencing, defendant moved to merge each pair of convictions (identity theft with fraudulent use) under Oregon’s anti-merger statute, ORS 161.067(1); the trial court denied the motion.
On appeal the parties agreed the acts constituted the same conduct and violated separate statutes; the sole dispute was whether each statutory provision required proof of an element the other did not (the third Crotsley factor).
The court analyzed the statutory elements as charged: identity theft (intent to deceive/defraud; possessed or uttered another’s personal identification — here, a credit card) and fraudulent use (intent to injure/defraud; used a credit card, knowing it was stolen, to obtain property/services).
The court concluded the elements of fraudulent use necessarily establish the elements of the charged form of identity theft (possession/uttering of another’s identification), so the identity theft counts must merge into the fraudulent-use convictions for each date.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether separate convictions for identity theft and fraudulent use of a credit card must merge under ORS 161.067(1) when based on the same conduct	State: Each statute is distinct and it is possible to commit one without the other	Defendant: Fraudulent use requires proof of elements (use to obtain property) not in identity theft, but identity theft is necessarily proved by proving fraudulent use, so counts should merge	The court held merger was required: fraudulent use contains all elements of the charged form of identity theft in this case, so identity theft convictions must merge into the more serious offense for each date

State v. Crotsley, 308 Or 272 (setting the three-part merger test under ORS 161.067)
State v. Gray, 240 Or App 599 (use indictment to identify which alternative form of a statute is charged for merger analysis)
State v. Alvarez, 240 Or App 167 (same: charged alternative controls elements for merger)
State v. Breshears, 281 Or App 552 (paraphrasing elements of identity theft and fraudulent-use offenses)
State v. Blake, 348 Or 95 (analysis of when one offense’s proof necessarily establishes another)
State v. Connally, 339 Or 583 (possession includes actual and constructive possession for identity-theft statute)
State v. Cloutier, 286 Or 579 (entry of conviction should be for the most serious offense when merger applies)