State v. Breshears

Under ORS 161.067, merger of criminal convictions is controlled by the elements of the crimes as charged, not by particular facts that the State might prove to establish those elements.

Defendant appealed his conviction of third-degree rape and second-degree sexual abuse. Defendant assigned error to the trial court's failure to merge the two charges into a single conviction. Defendant argued that the conviction of third-degree rape precluded his conviction for second-degree sexual abuse because the convictions should have merged. Under ORS 161.067, when conduct "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." The parties agreed that Defendant's conduct (a single criminal episode) violated two statutory provisions, so the issue before the Court was whether the two statutory provisions each required proof of an element that the other did not, as they were charged. Merge of criminal convictions is controlled by the elements of the crimes charged, not by particular facts the State might prove to establish the elements of those crimes. As charged, second-degree sexual abuse requires (1) sexual intercourse (2) without consent. Third-degree rape requires (1) sexual intercourse with (2) the victim being under 16 years of age. Because a victim who is under 16 years of age is legally incapable of giving consent, third-degree rape necessarily proved the elements of second-degree sexual abuse in those case. As such, the two convictions should have been merged into one conviction. Reversed and remanded.