State v. Lantz

When two or more counts involve the same conduct or criminal episode, the counts merge unless one of the provisions of ORS 161.067 operates to preclude merger. State v. Nelson, 282 Or App 427, 431, 386 P3d 73 (2016).

Defendant appealed from a judgment imposing sepa­rate convictions for 14 counts of first-degree rape, 25 counts of first-degree sodomy, 16 counts of first-degree sexual abuse, six counts of first-degree unlawful sexual penetration, four counts of endangering the welfare of a minor, six counts of luring a minor, one count of third-degree assault, and one count of possession of methamphetamine as a commercial drug offense. Defendant assigned error to the trial court’s failure to merge a number of the jury’s guilty verdicts according to the requirements of ORS 161.067. On appeal, Defendant argued that the trial court plainly erred by not merging the guilty verdicts on the paired counts, as required by ORS 161.067, so that a single conviction would be entered for each pair.  In response, the State argued that some of the convictions with multiple counts were “mirror” counts based on the same instances of conduct but alleged on different theories. When two or more counts involve the same conduct or criminal episode, the counts merge unless one of the provisions of ORS 161.067 operates to preclude merger. State v. Nelson, 282 Or App 427, 431, 386 P3d 73 (2016). The Court of Appeals held that the trial court erred when it failed to merge the guilty verdicts. Reversed and remanded for merger consistent with this opinion; remanded for resentencing; otherwise affirmed.