State v. Gensitskiy

Under ORS 161.067(2), “[w]hen the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims.”

Defendant appealed conviction of one count aggravated identity theft, and 27 counts of identity theft. Defendant assigned error to the trial court’s failure to merge the separate convictions. On appeal, Defendant argued that under ORS 161.067(1), ten or more victims of identity theft are required for a conviction under the aggravated identity-theft statute. Therefore, the statute infers that the victims must be different people. Defendant argued that because the judgement claimed all 27 counts of identity theft as part of the aggravated identity-theft count, and therefore, the identity-theft counts were lesser-included offenses of the aggravated identity-theft count. Under ORS 161.067(2), “[w]hen the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims.” The Court of Appeals held that under ORS 161.067(2), the amount of provisions that are violated are not determinative of the judgement, but rather it is the number of victims that are harmed in the offense that determines the aggregated punishment. Reversed and remanded.