256 P.3d 166
Or. Ct. App.2011Background
- Defendant Noe was convicted of two counts of first-degree aggravated theft, unauthorized use of a vehicle (UUV), and possession of a stolen vehicle (PSV).
- On appeal, Noe argued the first two convictions were based on uncorroborated accomplice testimony (assignment of error).
- The State conceded that the two first-degree aggravated theft convictions should merge because they involved the same property in different form.
- The court analyzed whether UUV and PSV should merge, focusing on the statutory elements and whether one crime’s elements subsume the other.
- The court reversed and remanded: merge Counts 1–2 into one aggravated theft conviction and Counts 4–5 into one UUV/PSV conviction and resent sentencing; otherwise affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Should aggravated theft counts merge? | State: counts 1 and 2 involve same property in different form; merge. | Noe: separate convictions remain appropriate. | Yes; merge Counts 1 and 2 into a single aggravated theft conviction. |
| Do UUV and PSV merge with each other and/or with aggravated theft? | State: UUV and PSV contain different elements; conflict with merger. | Noe: UUV and PSV should merge with each other due to overlapping elements. | UUV and PSV should merge with each other; neither merges with aggravated theft; however, they should have merged together. |
Key Cases Cited
- State v. Cox, 336 Or. 284 (2003) (merger where property is the same in different forms)
- State v. Tucker, 315 Or. 321 (1993) (elements-based approach to multiple statutory violations)
- State v. Walraven, 214 Or.App. 645 (2007) (elements-based comparison; look to statutory elements)
- State v. Nunn, 110 Or.App. 96 (1991) (when statute can be violated in alternative ways, examine the combination of elements)
- State v. Bell, 220 Or.App. 266 (2008) (equating 'without consent of owner' and 'stolen')