State v. Brown

Though State v. Slatton allows for merger of multiple counts of crimes charged under alternative theories, ORS 161.067(2) should be taken into account to so that where multiple counts are listed, not only under alternative theory but also with different victims, those counts do not merge.

Defendant appealed his conviction of two counts Theft I contending that the trial court erred when it did not merge the two counts into a single conviction. Defendant allegedly stole a safe from Willamette Valley Books and Bullion. The safe contained a gun owned by the owner of the store and some jewelry and coins of which ownership was not clear. One count of Theft I was for the gun, with the store owner as the victim, and the second count of Theft I for the jewelry and coin, listing the store as the victim. Defendant claimed that under State v. Slatton, 268 Or App 556, he was entitled to the merger because the alternative theories used in charging the crimes (one for theft of a firearm, the other for theft over $1,000) did not create preclude merger. While the State conceded that point, it asserted that the qualitative difference between the two charges was that each charge listed a separate victim pursuant to ORS 161.067(2). This Court agrees with the State’s argument and remanded to the trial court for their determination of the victims and whether ORS 161.067(2) applies. Remanded on counts 4 & 5 and otherwise Affirmed.