State v. Barton

"When the same conduct or criminal episode 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." ORS 161.067(1).

At trial, Defendant was convicted of eight counts of "unlawfully taking" and "possessing" wildlife. See ORS 498.002; ORS 496.992. Defendant assigned error to the trial court’s ruling that merger was precluded by ORS 161.067. On appeal, Defendant posited that counts 1 and 7 and counts 3 and 8 merged into two respective offenses. The State argued that merger was precluded for counts 7 and 8 because of a “sufficient pause” between the acts. ORS 161.067(1) precludes merger of offenses not within the “same conduct or criminal episode.” Offenses are within the “same criminal episode” if “a complete account of each crime necessarily include details of the other.” State v. Witherspoon, 250 Or App 316 (2012). Offenses fall within Witherspoon if they share a single “criminal objective.” See Witherspoon, 250 Or App at 325. The Court found that unlawfully taking (7 and 8) and possessing (1 and 3) wildlife share the single “criminal objective” of obtaining wildlife for personal use when conduct concerned the same piece of game. Because counts 1 and 7 and counts 3 and 8 concerned the same respective pieces of game, despite the temporal lapse between conduct, the Court held that ORS 161.067 did not preclude merger of offenses. Reversed and remanded.