Defendant appeals a judgment of conviction for two felony counts of identity theft and two misdemeanor counts of fraudulent use of a credit card. She contends that the trial court erred in denying her motion to merge guilty verdicts for those two offenses, as required by Oregon’s anti-merger statute, ORS 161.067. We review for legal error whether a trial court must merge guilty verdicts, State v. Crotsley,
In this case, the essential facts are undisputed, and the details are largely irrelevant to the resolution of the legal error at issue. This case arose from defendant’s use of a stolen credit card. Defendant used the credit card to make two unauthorized purchases in separate locations on separate dates.
For each of the two uses of the stolen credit card, defendant was charged with a pair of offenses—one count of identity theft and one count of fraudulent use of a credit card. Defendant was charged with and found
“Count 1[:] The defendant *** did unlawfully, with the intent to deceive or defraud, possess and utter personal identification of [the victim];
“Count 2 [:] The defendant * * * in an act and transaction separate and distinct from that alleged in Count 1, did unlawfully, with the intent to deceive or defraud, possess and utter personal identification of [the victim];
“Count 3[:] The defendant *** did unlawfully, with the intent to injure or defraud, use a credit card, to wit: a Visa card, for the purpose of obtaining property, to wit: ear buds, with knowledge that said credit card was stolen;
“Count 4[:] The defendant *** in an act and transaction separate and distinct from that alleged in Count 3, did unlawfully, with the intent to injure or defraud, use a credit card, to wit: a Visa card, for the purpose of obtaining property, to wit: cigarettes, with knowledge that said credit card was stolen!.]”
At sentencing, defendant argued that, pursuant to ORS 161.067(1), the counts of identity theft should merge with the counts of fraudulent use of a credit card. Defendant contended that a person could not “commit fraudulent use of a credit card without committing the act of identity theft [,] ” and that the same elements made up “each of these counts.” The court did not merge any of the guilty verdicts.
Defendant appeals, assigning error to the court’s failure to merge each pair of guilty verdicts. She argues that only a single conviction for identity theft should have been entered for each pair of verdicts for identity theft and fraudulent use of a credit card because the separate statutory provisions do not each require proof of an element that the other does not. The state disagrees, contending that “it is possible to commit each crime without committing the other.”
In relevant part, the anti-merger statute, ORS 161.067(1), provides that “[w]hen the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.”
“(1) Did defendant engage in acts that are ‘the same conduct or criminal episode,’ (2) did defendant’s acts violate two or more ‘statutory provisions,’ and (3) does each statutory ‘provision’ require ‘proof of an element that the others do not.’”
Crotsley,
“The elements of proof of a criminal offense are controlled by the statute defining the offense, not by the factual circumstances recited in the indictment.” State v. Atkinson,
“when a statute contains alternative forms of a single crime (as, for example, unlawful use of a weapon, which can be committedeither by (1) carrying or possessing a dangerous weapon or by (2) attempting to use one), we will look to the indictment to determine which form is charged, and we use the elements of the charged version in the merger analysis.”
State v. Gray,
Consistent with that analysis, we frame our issue by comparing the elements of each respective offense. We examine each offense, using the indictment where the statute provides alternative terms, in order to identify the elements of each offense as the state was required to prove them in this case. A person commits the offense of identity theft, as charged here, “if the person, with the intent to deceive or to defraud, obtains, possesses, transfers, creates, utters, or converts to the person’s own use the personal identification of another person.” ORS 165.800(1). The “personal identification” of another person is defined to include “[t]he identifying number of a person’s depository account at a ‘financial institution’ or ‘trust company’, * * * or a credit card account.” ORS 165.800(b)(H).
A person commits the offense of fraudulent use of a credit card “if, with intent to injure
We recognize that fraudulent use of a credit card requires proof of at least one element that identity theft does not. Fraudulent use of a credit card requires proof that the person used the credit card “for the purpose of obtaining property or services.” ORS 165.055(1). Because identity theft does not require proof of that element, fraudulent use of a credit card requires proof of an element that identity theft does not. It is possible to commit identity theft without committing fraudulent use of a credit card.
Our analysis does not end there, however, because the parties dispute whether “[p] roving the crime of fraudulent use of a credit card necessarily proves the crime of identity theft.” We must determine whether identity theft contains an element that fraudulent use of a credit card does not. See State v. Blake,
Both offenses share the common element of an intent to deceive or defraud. Both share a common element involving a personal identification insofar as a credit card is one kind of personal identification. Both share the common element involving the personal identification “of another” insofar as proof that a credit card is “stolen” proves that it is the card “of another.” Likewise, proof of the fraudulent “use” of a stolen credit card proves that the defendant, as alleged in the indictment, has “uttered” and “possessed” the identification of another. The last observation, however, requires explanation.
A person cannot “use” a credit card within the meaning of ORS 165.055 without also necessarily “possessing” it within the meaning of ORS 165.800. Whether a suspect had a credit card in hand is immaterial. That is because possession, in the context of the identity theft statute, includes both actual and constructive possession. State v. Connally,
In sum, proof of the elements of fraudulent use of a credit card proves the elements of the offense of identity theft, in the forms in which the offenses were alleged in this case. At least as is alleged here, identity theft does not require proof of an element that is not already included in fraudulent use of a credit card. Therefore, the trial court erred in failing to merge the separate guilty verdicts in each of those pairs of offenses (Counts 1 and 3; Counts 2 and 4). That is, the pair of offenses occurring on the first date should merge; the pair of offenses occurring on the second date should merge.
Defendant requests that the court vacate her convictions and sentences for misdemeanor fraudulent use of a credit card. We agree that the offenses merge into the more serious offense but describe the disposition more appropriately. State v. Cloutier,
Convictions on Counts 1, 2, 3, and 4 reversed and remanded for entry of a judgment of conviction for two counts of identity theft; remanded for resentencing; otherwise affirmed.
Notes
ORS 165.800 was amended in 2015, but that amendment is immaterial to the issue on appeal. See Or Laws 2015, ch 158, § 25 (2015). All references in this opinion are to the current version of the statute.
The anti-merger statute includes other subsections addressing situations in which guilty verdicts may and may not merge. Those subsections are not at issue in this case.
For example, the quotation from Gray, above, refers to alternative forms of unlawful use of a weapon. Two alternative phrases help define that offense:
“(1) A person commits the crime of unlawful use of a weapon if the person:
“(a) Attempts to use unlawfully against another, or carries or possesses with intent to use unlawfully against another, any dangerous or deadly weapon * *
ORS 166.220(l)(a) (emphasis added). For merger analysis, we look for which alternative form is alleged.
The identity theft statute was drafted broadly because it was “adopted to expand the protection of the law to other persons” beyond preexisting laws, such as forgery and fraudulent use of a credit card. State v. Mullen,
Because the indictment did not charge alternative forms of the offense involving obtaining, transfer, creation, or conversion of another’s personal identification, we are concerned here only with “possession” or “uttering” of another’s identification. See Gray,
Because the charged form of fraudulent use of a credit card involved only the knowledge that the card was stolen, our analysis does not concern' the other forms of knowledge that the card is forged, revoked, canceled, or is otherwise unauthorized. See Alvarez,
The disposition of this case may appear unusual insofar as the conviction is for the offense with fewer unique elements. Ordinarily, ‘“[t]rue merger’ exists when all of the elements of the lesser offense are included in the greater offense.” State v. Gilbertson,