State v. Fasasi

To avoid merger, repeated violations of the same statutory provision against the same victim must be separated from other such violations by a sufficient pause in the defendant's criminal conduct to afford the defendant an opportunity to renounce the criminal intent. ORS 161.067(3)

Defendant appealed his convictions of two counts of first-degree forgery, three counts of identity theft, and one count of second-degree forgery, raising six assignments of error. The first four assignments challenged the sufficiency of evidence for the forgery convictions and the trial court's failure to merge Counts 1 and 3. The defendant also argued that Counts 2 and 4 for identity theft should have been merged. The state conceded this error, obviating the need to address the sixth assignment. “To avoid merger, repeated violations of the same statutory provision against the same victim must be separated from other such violations by a sufficient pause in the defendant's criminal conduct to afford the defendant an opportunity to renounce the criminal intent.” ORS 161.067(3). The Court found that there was enough direct and circumstantial evidence for a reasonable jury to conclude the defendant had completed the checks and upheld the trial court’s decision to deny the defendant’s motion for acquittal on three forgery charges. The Court found no plain error regarding the defendant's claim about merging the two first-degree forgery convictions, as there was a legitimate dispute about the timing between the forgeries. However, the Court found that the trial court erred by not merging the identity theft convictions since there was no evidence of a significant pause between the defendant’s possession of the checks. The Court reversed and remanded Counts 2 and 4 for a single conviction of identity theft and resentencing and otherwise affirmed.