State v. Stanton

Under Oregon's "anti-merger" statute--ORS 161.067--a trial court, before issuing separate convictions arising from one incident, must determine if either (1) there were separate victims, or (2) there was sufficient pause between crimes committed against one victim.

Defendant discharged his gun outside of the window of his car. He shot five times at what he contended was one class of persons, not multiple individuals. At trial, he was convicted of five counts of the unlawful use of a weapon with a firearm. The trial court never determined how many "victims" he was aiming his gun at, but instead held that each individual shot (five) was enough under the statute because it increased the risk with each additional shot.

On appeal, Defendant argues that Oregon's anti-merging statute--ORS 161.067(2), (3)--was not applicable in this instance and therefore it was an error to convict of multiple accounts where there was insufficient amount of victims, or rather that the the bystanders were one victim class, and insufficient pause between shots, therefore constitution one incident.

The state conceded that the trial court's finding was in err; however, the state argued that the trial court never touched on the issue of the number of victims, therefore the case should be remanded for another proceeding to establish if the condition of the number of victims gave rise to a finding favorable to ORS 161.067(2). The Court agreed. As to the issue pursuant to ORS 161.067(2), reversed and remanded. Otherwise, affirmed.