Defendant appeals from a judgment of conviction on four counts of endangering the welfare of a minor. ORS 163.575(1)(b).
1
She argues that the conviction on four counts of endangering the welfare of a minor should merge with her conviction on four counts of child neglect in the first degree. ORS 163.547(1).
2
We review the trial court’s decision as a matter of law,
State v. Crotsley,
On July 31,1996, officers executed a search warrant at defendant’s home. Officers seized a small quantity of marijuana, scales, and marijuana paraphernalia. Reiland, defendant’s spouse, subsequently pleaded guilty to delivery of a controlled substance. Defendant was convicted by a jury of four counts of endangering the welfare of a minor, four counts of child neglect in the first degree, and one count of frequenting a place where controlled substances are used, ORS 167.222(1), 3 based on the fact that marijuana was found in her home.
On appeal, defendant argues that “[t]he elements of child endangerment are subsumed in the elements of child neglect” and that the trial court erred when it failed to merge *604 defendant’s convictions for endangering the welfare of a minor into her convictions for child neglect in the first degree. The state concedes that the “ ‘controlled substances were being criminally delivered for consideration and profit’ element necessarily includes the ‘unlawful activity involving a controlled substance’ element,” but argues that “there exists a significant difference between the child-neglect element of ‘allowing’ a child ‘to stay’ on ‘premises’ and * * * the endangering element of‘permitting’ a child to ‘enter or remain in a place.’ ”
When a defendant’s conduct violates two statutory provisions, and each statute does not require proof of an element the other does not, the convictions merge. ORS 161.062(1);
4
State v. Crotsley,
Here, we do not agree that proof that defendant “allowed children to stay” and “permitted children to remain” require proof of different elements. We note at the outset that “allow” and “permit” are synonyms,
Webster’s Third New Int’l Dictionary
58, 1683 (unabridged ed 1993), as are “stay” and “remain,”
Id.
at 2231, 1919. We have previously construed the word “permit” and required that “[b]efore one can be said to ‘permit’ something, one must have authority to forbid it.”
State v. Pyritz,
Reversed and remanded for entry of judgment merging four convictions for endangering the welfare of a minor into four convictions for child neglect in the first degree and for resentencing; otherwise affirmed.
Notes
ORS 163.575 provides, in part:
“(1) A person commits the crime of endangering the welfare of a minor if the person knowingly:
sfc s-j % %
“(b) Permits a person under 18 years of age to enter or remain in a place where unlawful activity involving controlled substances is maintained or conducted!.]”
ORS 163.547(1) provides, in part:
“A person having custody or control of a child under 16 years of age commits the crime of child neglect in the first degree if the person knowingly leaves the child, or allows the child to stay * * * on premises and in the immediate proximity where controlled substances are criminally delivered or manufactured for consideration or profit.”
ORS 167.222(1) provides, in part:
“A person commits the offense of frequenting a place where controlled substances are used if the person keeps, maintains, frequents, or remains at a place, while knowingly permitting persons to use controlled substances in such place or to keep or sell them in violation of ORS 475.005 to 475.285 and 475.940 to 475.995.”
ORS 161.062 and ORS 161.067 are two virtually identical statutes addressing the same issue. ORS 161.062(1) provides, in part:
“When 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.”
See State v.
Crotsley,