State v. Reed

Under ORS 161.067, the antimerger statute applies if the criminal violations were (1) completed before the next violation began, and (2) there was a significant pause between each attempt, affording the defendant the opportunity to renounce his criminal intent.

Defendant appealed a judgment convicting him of four counts of felony fleeing or attempting to elude a police officer, under ORS 811.540. Defendant argued that the trial court erred when entering separate convictions for the four counts because he believed they should have merged and that ORS 161.067, the anitmerger statute, should not apply here. Within about an hour and a half, defendant attempted to elude four different officers. Defendant argued the counts should merge because the attempt to elude the police was an ongoing occurrence. The Court of Appeals agreed with the trial court that ORS 161.067(3) applied, because the four violations of ORS 811.540 constituted multiple violations and were separated by significant pauses. Defendant completed each attempt to elude before beginning the next and each attempt was separated by a “sufficient pause,” which afforded him the opportunity to renounce his criminal intent. These four separate attempts to elude involved more transition than just involving new officers. He was not actively being pursued at all times and was out of sight for up to 20 minutes. Also, defendant stopped running and hiding for periods of time because he believed he had succeeded in his escapes; even returning to a prior location. Affirmed.