State v. Marks

ORS 161.067(1) provides, “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.” See ORS 161.067(1).

Loss of reputation is considered “economic damages,” when the damages are objectively verifiable. See ORS 137.103(2); ORS 31.705(2)(a).

Defendant appealed a conviction of two counts of first-degree sexual abuse and one count of attempted second-degree rape. On appeal, Defendant assigned error to the trial court’s denial to merge Counts 5 and 6 and decision to impose compensatory fines. Defendant argued that, because the State needed to prove the elements of Count 6 to meet its burden for proving the lesser attempt of Count 5, merging these guilty verdicts was appropriate. ORS 161.067(1) provides, “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.” See ORS 161.067(1). The Court reasoned that, even if they applied Defendant’s proposed analysis, the trial court correctly found the two convictions arose out of the same episode, involved two statutory violations, and each required proof of an element the other does not; therefore, merger was not required under ORS 161.067. Second, Defendant argued that the trial court erred when it imposed compensatory fines in the absence of economic damages. Loss of reputation is considered “economic damages,” when the damages are objectively verifiable. See ORS 137.103(2); ORS 31.705(2)(a). The Court reasoned that, because the State simply informed the trial court that the victim had suffered an abstract loss of reputation rather than offering evidence of economic damages, it was an error for the trial court to impose compensatory damanges. Affirmed the trial court’s decision denying merger; Reversed and remanded the section of the judgment awarding compensatory fees.