State v. Black

Under ORS 161.067, where one act satisfies more than one element of a single crime, a defendant’s single criminal act cannot be converted into multiple crimes.

Defendant Black appeals the trial court’s judgment convicting him of three counts (Counts 1, 2 and 4) of first-degree sexual abuse, ORS 163.427. On appeal Defendant argued the trial court erred by not merging Counts 1 and 2, and by entering separate convictions for both counts. Specifically, defendant argued that since both counts (alleging violations of subparagraphs 163.427(1)(a)(A) and (C)) arose from the same act, the subparagraphs are merely different theories of the same crime. Pursuant to Oregon’s merger law, ORS 161.067, counts that allege conduct that violates “only one statutory provision,” ORS 161.067(2), will merge as one conviction unless the alleged conduct involves either multiple victims or discrete acts against the same victim. The Court held that whether individual sections, paragraphs or subparagraphs constitute “one statutory provision” or multiple statutory provisions for merger purposes is a question of legislative intent, and courts must determine whether the legislature intended the statutory provision to define only one crime or multiple crimes. Here, the legislature intended to express only a single crime, and the subparagraphs of ORS 163.427 merely identify several ways to commit the crime of first-degree sexual abuse. Where one act satisfies more than one element of a single crime, a defendant’s single act is not converted into multiple crimes capable of conviction. Reversed and Remanded with instructions to merge the convictions of Counts 1 and 2, Remanded for resentencing, otherwise Affirmed.