State v. Paye

Under ORS 161.067, when a conviction is predicated on an ongoing course of conduct, other charges involving the same conduct in the same period must merge unless otherwise barred by statute.

Defendant appealed a conviction for two counts of Compelling Prostitution and seven counts of Promoting Prostitution. Defendant alleged, in relevant part, the trial court erred by failing to merge several counts and denying a motion to suppress. Defendant argued that merger was appropriate because one count charged an ongoing course of “prostitution-related activities,” including activities charged in other counts. In response, the State argued that each count constituted discrete criminal episodes, and, alternatively, they qualify for the exceptions to merger in ORS 161.067. Under ORS 161.067, when a conviction is predicated on an ongoing course of conduct, other charges involving the same conduct in the same period must merge unless otherwise barred by statute. The Court found that because the State had charged the ongoing course of conduct, which included the other charges, those convictions shall merge. Because ORS 161.012 is one statutory provision having only one victim (the public), and an ongoing course of conduct necessarily does not allow for a “sufficient pause,” Defendant’s convictions do not qualify for ORS 161.067 exceptions. As to the warrant, the Court, citing State v. Mansor, 279 Or App 778 (2016), aff’d, 363 Or 185 (2018), stated that the warrant was not “overbroad” and met the standard of specificity that is required. Convictions on Counts 1, 4, 5, and 6 reversed and remanded; reversed and remanded to address merger in a manner consistent with this opinion; remanded for resentencing; otherwise affirmed.