State v. Mullen
245 Or. App. 671
Or. Ct. App.2011Background
- Defendant was convicted in consolidated cases of identity theft under ORS 165.800(1) based on possession of another person's personal identifications (Burton, Spencer, Martinelli) and on forged checks.
- Before sentencing, defendant moved to merge the three identity-theft convictions tied to possession of multiple IDs, arguing they arose from one episode and targeted the same statutory provision with a single victim.
- Trial court denied merger, ruling Burton, Spencer, and Martinelli were separate victims, allowing multiple convictions.
- On appeal, defendant contends that the victims of identity theft under ORS 165.800(1) are the intended defrauded persons, not the holders of the misappropriated identifications, so the three convictions should merge.
- Statutory framework: ORS 161.067(2) permits multiple punishments for the same conduct if there are two or more victims in a single episode; ORS 165.800 criminalizes obtaining or using another person's personal identification with intent to deceive or defraud.
- Court analyzes who qualifies as a 'victim' under ORS 165.800 by examining the statute’s text, context, and legislative history to determine the harm protected.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Are Burton, Spencer, and Martinelli separate victims under ORS 161.067(2) for identity theft? | State: each misappropriated ID creates a separate victim harmed by risk of loss. | Mullen: victims are only those deceived/defrauded, not the misappropriated holders. | Yes; Burton, Spencer, and Martinelli are separate victims. |
Key Cases Cited
- State v. Glaspey, 337 Or. 558 (2004) (defines 'victims' under ORS 161.067(2) as the category protected by the statute)
- State v. Gaines, 346 Or. 160 (2009) (looks to statutory text, context, and legislative history for intent)
- State v. Moncada, 241 Or.App. 202 (2011) (analyzes gravamen and class of persons the legislature intended to protect)
- State v. Porter, 198 Or.App. 274 (2005) (recognizes identity theft targets deception/intent to defraud even without completed deception)
- State v. Alvarez-Amador, 235 Or.App. 402 (2010) (discusses meaning of 'defraud' under ORS 165.800)
- State v. Hamilton, 348 Or. 371 (2010) ('Another person' as a victim for purposes of protecting a real party)
- State v. Sumerlin, 139 Or.App. 579 (1996) ('Another person' could be a victim when at risk of injury)
- DLCD v. Crook County, 242 Or.App. 580 (2011) (staff measure summaries properly considered in discerning legislative intent)