State v. Owens , 102 Or. App. 448 ( 1990 )

ROSSMAN, J.

Defendant appeals his convictions by a jury for robbery in the first degree, ORS 164.415, and theft in the third degree. ORS 164.043. He contends that, because theft merges into robbery, the judgment should have reflected the commission of only one offense. We affirm.

Defendant took a carton of cigarettes from the shelf of a store and left without paying for it. A clerk followed him to the parking lot and told him to wait for the manager. A person who was accompanying defendant put a knife to the clerk’s chest and asked the clerk if he thought “it was worth it,” whereupon the clerk stepped aside. By then, the store manager had arrived. He questioned defendant about the cigarettes. Defendant threw the cigarettes under a car and responded, “What cigarettes[?]” Then he and his companion got into a car and drove away.

Defendant argues that “[t]he relationship [between the robbery and the theft] * * * creates an example of true merger.” According to him, because “robbery necessarily involves a theft or attempted theft, in those instances where theft and robbery involve the same property, the offense of theft necessarily merges into the robbery offense.”

Defendant is mistaken. ORS 161.067(1) states:

“(1) 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.” (Emphasis supplied.)

Robbery requires the use or threatened use of force; theft does not. Theft requires the completed taking of the property of another; robbery does not.¹ Accordingly, the plain language of the statute precludes merging the two offenses.²

Even if defendant is correct in his interpretation of ORS 161.067(1), merger nevertheless would be foreclosed by operation of ORS 161.067(2),³ which provides, in pertinent part:

“(2) When the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims” (Emphasis supplied.)

As the state points out, there were two victims of defendant’s offenses — the store’s owner was the victim of the theft, and the clerk was the victim of the robbery. Thus, even if defendant’s conduct violates only one statutory provision under subsection (1), he nevertheless has committed separately punishable offenses under subsection (2).

That reading of the statute is consistent with its purpose. The Supreme Court construed ORS 161.062 and, by implication, ORS 161.067⁴ in State v. Crotsley, 308 Or 272, 779 P2d 600 (1989). It observed that the proponents of those statutes

“clearly intended that criminal records accurately reflect all crimes actually committed and that a person who commits multiple crimes by the same conduct or during the same criminal episode should have a criminal record reflecting each crime committed rather than only a single conviction which would not accurately portray the nature and extent of that person’s conduct.” 308 Or at 276. (Footnote omitted.)

The nature and extent of defendant’s crimes against his two victims are not accurately reflected by entry on his record of a single conviction.⁵ Accordingly, he has committed two separate offenses.⁶

Affirmed.

1 Robbery can arise out of the commission of an attempted theft. ORS 164.395(1).

2 It is possible to argue that defendant committed only one offense, because the state, having proceeded on the theory that he committed a completed theft, proved no element that is not common to robbery. However, “[t]he elements of proof of a criminal offense are controlled by the statute defining the offense, not by the factual circumstances recited in the indictment.” State v. Atkinson, 98 Or App 48, 50, 111 P2d 1010 (1989). The statute means exactly what it says: Because each of the statutory provisions defining the crimes of robbery and theft require proof of an element that the other does not, the two offenses cannot be merged.

For that reason, we held in State v. Cheney, 92 Or App 633, 637, 759 P2d 1119 (1988), that ORS 161.067(1) prevents merging a defendant’s convictions for burglary and theft:

“The crimes of burglary in the first degree and theft in the first degree each require proof of an element that the other does not. Burglary requires an unlawful entry; theft does not. Theft requires the taking of the property of another; burglary does not. If the burglary is committed with the intent to commit theft, it is complete on entry with that intent, whether or not any taking occurs. ORS 164.225; ORS 164.015. Therefore, under ORS 161.067(1) burglary in the first degree and theft in the first degree are separately punishable offenses.”

That analysis is directly applicable to the crimes of theft and robbery.

3 Defendant’s brief does not consider the effect of ORS 161.067(2) on his case.

4 The Supreme Court explained the relationship between the two statutes this way:

“ORS 161.062 and its not quite identical twin, ORS 161.067, have an intertwined and convoluted relationship. * * *

“In effect, the original proposed multiple conviction and sentencing statute was enacted twice, first in an amended legislative version, ORS 161.062, and later in an unamended initiative version, ORS 161.067. Both statutes remain on the books.” State v. Crotsley, supra, 308 Or at 276 n 3.

5 In arguing that “the majority dances around the fact that there were two statutes violated,” 102 Or App 448, 454, the dissent stumbles over its own analysis. It essentially acknowledges that the purpose of ORS 161.067 is to ensure “that a person who commits multiple crimes by the same conduct * * * should have a criminal record reflecting each crime committed.” State v. Crotsley, supra, 308 Or at 277. 102 Or App at 455. Because, as the dissent essentially concedes, defendant committed two crimes, the only reasonable interpretation of the statute’s language is that it forecloses merger in his case.

6 The dissent would hold that ORS 161.067(2) applies only to defendants who have violated a single statutory provision. That is an untenable construction of the statute. As the Supreme Court noted in State v. Crotsley, supra, 308 Or at 276, the statute was intended to address three sets of circumstances in which a single criminal episode might provide grounds for multiple convictions and sentences. The situations included (a) “where a single criminal episode involvejd] violation of more than one statute;” (b) “where a single criminal episode involvejd] multiple victims;” and (c) “where a single criminal episode involve[d] multiple crimes against the same victim.” The three subsections of ORS 161.067 correspond exactly to those three situations. They read, in pertinent part:

“(1) 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.

“(2) When the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims. * * *

“(3) When the same conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involves repeated violations of the same statutory provision against the same victim, there are as many separately punishable offenses as there are violations, except that each violation, to be separately punishable under this subsection, 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. * * *”

Read as a whole, ORS 161.067(2) forecloses merger in all cases in which a single criminal episode involves multiple victims.

Moreover, it would be nonsensical to hold that defendant has committed only one crime for purposes of subsection (1) but has violated two statutes for purposes of subsection (2). If defendant may be punished for only one crime under subsection (1), because his offenses have merged, then he has violated only one provision for purposes of subsection (2). To hold otherwise would ignore the statutory scheme as a whole.

Finally, under the dissent’s view, merger would be foreclosed when a defendant who has harmed two victims has violated only one provision, but it would be permitted if he has violated two provisions. We decline to adopt an interpretation requiring that absurd result.