State v. Steltz

Under ORS 161.067(1), 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.

Steltz appealed a judgment of conviction for three counts of first-degree sodomy (Counts 1, 4, and 5), one count of first-degree unlawful sexual penetration, one count of first-degree sexual abuse, and two counts of second-degree sexual abuse (Counts 6 and 7). Steltz was an inmate accused of sodomizing and sexually abusing two other inmates. Steltz argued that the trial court erred by failing to merge the convictions for Counts 6 and 7 into the convictions for Counts 4 and 5. In support of his argument, Steltz argued that Counts 4 through 7 related to only two episodes of criminal conduct, not four. The Court of Appeals agreed that Counts 6 and 7 were lesser-included offenses and concluded that the trial court's failure to merge four of Steltz's convictions into two constituted an error of law under ORS 161.067 that was apparent on the face of the record. Steltz raised three other assignments of error that the Court dismissed as unpreserved. Reversed and remanded with instructions to merge Steltz's conviction on Count 6 into his conviction on Count 4 and to merge Steltz's conviction on Count 7 into his conviction on Count 5 and for resentencing; otherwise affirmed.