Defendants appeal their convictions for unlawful racketeering activity, ORS 166.720(3) (ORICO), and two counts of promoting prostitutiоn. ORS 167.012. 1 They argue that the court erred in failing to merge their promoting prostitution and racketeering convictions. We affirm.
Defendants first contend that their convictions for violating ORS 167.012(l)(a) and ORS 167.012(l)(c) should merge. They rely on
State v. Williams,
ORS 167.012 provides four alternative combinations of elements that can constitute promoting prostitution. Each involves the intent to promote prostitution and at least one
element not involved in the others. ORS 167.012(l)(а) requires proof that defendants “maintained] a place of prostitution.” ORS 167.012(l)(c) requires proof that the defendants “receive[d] * * * money * * * other than as a
Next, defendants contend that their convictions for promoting prostitution and unlawful racketeering activity, ORS 166.720(3),
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should merge. They argue .that merger must occur, because proof of the violation of two subsections of ORS 167.012 involved the same conduct as proof of the predicate crimes under ORS 166.720(3). Wе answered that argument contrary to defendants’ position in
State v. Blossom,
Before the enactment of ORS 161.062 and ORS 161.067, courts decided merger issuеs on the basis of their discernment of legislative intent.
See State v. Cloutier,
“(1) Did defendant engagе in acts that are ‘the same conduct or criminal episode,’ (2) did defendant’s acts violate two or more ‘statutоry provisions,’ and (3) does each statutory ‘provision’ require ‘proof of an element that the others do not.’ ”308 Or at 278 .
ORS 166.720(3) requirеs proof of a pattern of racketeering, an element that ORS 167.012 does not contain. ORS 167.012(l)(a) and (c) contain еlements that are not included in ORS 166.720(3). Therefore, under ORS 161.067(1), there is no merger. It makes no difference that the same conduсt is the basis for all of the convictions.
But see State v. Heneghan,
Defendants’ remaining assignments of error do not require discussion.
Affirmed.
Notes
ORS 167.012(1) provides:
“A person commits the crime of promoting prostitution if, with intent to promote prostitution, the person knowingly:
“(a) Owns, controls, manages, supervises or otherwise maintains a place of prostitution or a prostitution enterprise; or
“(b) Induces or causes a person to engage in prostitution or to remain in a place of prostitution; or
“(c) Receives or аgrees to receive money or other property, other than as a prostitute being compensated for personally rendered prostitution services, pursuant to an agreement or understanding that the money or other property is derived from a prostitution activity; or
“(d) Engages in any conduct that institutes, aids or facilitates an act or enterprise of prostitution.”
ORS 161.067(1) was adopted in the 1986 general election as part of the “Crime Victims’ Bill of Rights” and, for purposes of this issue, includes the same language as ORS 161.062(1). Or Laws 1987, ch 2, § 13. ORS 161.067(1) provides:
“When the same conduct or criminal episodе 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.”
ORS 166.720(3) provides:
“It is unlawful for any person employed by, or associated with, any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity or the colleсtion of an unlawful debt.”
ORS 166.715(4) provides:
“ ‘Pattern of racketeering activity’ means engaging in at least two incidents of racketeering аctivity that have the same or similar intents, results, accomplices, victims or methods of commission or otherwise arе interrelated by distinguishing characteristics, including a nexus to the same enterprise, and are not isolated incidents, prоvided at least one of such incidents occurred after November 1,1981, and that the last of such incidents occurred within five years after a prior incident of racketeering activity.”
“Racketeering activity” is defined in ORS 166.715(6)(a):
“ ‘Racketeering activity’ means to commit, to attеmpt to commit, to conspire to commit, or to solicit, coerce or intimidate another person to сommit:
“(a) Any conduct which constitutes a crime, as defined in ORS 161.515, under any of the following provisions of the Oregon Revised Statutes:
sjc * * *
“(T) ORS 167.007 to 167.017 * * * relating to prostitution * *