State v. Haddon

The anti-merger statute, ORS 161.067(1), provides that when a given conduct or "criminal episode" violates two or more criminal statutes, and one these statutes require establishing an element not present in the other, each violation is to be treated as a "separately punishable offense."

Defendant appealed her two felony convictions of identity theft, and two misdemeanor convictions of fraudulent use of a credit card. Defendant assigned error to the lower court's denial of Defendant's "motion to merge the guilty verdicts for [the] two offenses." On appeal, Defendant contended that the two offenses should be merged because one cannot fraudulently use a credit card without committing identity theft, and that "'each of the counts'" were comprised of the same elements. In response, State argued that it was in fact "possible to commit each crime without committing the other." The anti-merger statute, ORS 161.067(1), provides that when a given conduct or "criminal episode" violates two or more criminal statutes, and one these statutes require establishing an element not present in the other, each violation is to be treated as a "separately punishable offense." The Court of Appeals determined that, while fraudulent use of a credit card requires a party to establish an element not required in proving identity theft, one inherently commits identity theft when fraudulently using a credit card. The Court also held that although identity theft doesn’t require “establishing that the benefit was either property or services,” the two criminal statutes do share a number of common elements. Accordingly, the Court held that the trial court should have merged Defendant's convictions. Counts 1, 2, 3, and 4 reversed and remanded for entry of judgment of conviction for two counts of identity theft; remanded for resentencing; otherwise affirmed.