State v. Nunn

RIGGS, J.

Defendant appeals his convictions of forgery in the first degree, ORS 165.007; ORS 165.013, and fraudulent use of a credit card. ORS 165.055. He assigns error to the trial court’s denial of his motion to merge the convictions. He argues that fraudulent use of a credit card is necessarily a lesser included offense of forgery in the first degree, because one cannot commit the former without committing the latter. We disagree and affirm.

Defendant’s two convictions stemmed from the same act. At sentencing, defendant moved that the convictions be merged. The trial court concluded that the statutes defining the offenses require different elements of proof and denied the motion. ORS 161.062(1); ORS 161.067(1).¹

‘ ‘The elements of proof of a criminal offense are controlled by the statute defining the offense, not by the factual circumstances recited in the indictment * * *. [0]ffenses cannot be merged if proof of one offense requires proof of an element that the other does not. ’ ’ State v. Atkinson, 98 Or App 48, 50, 777 P2d 1010 (1989). (Citations omitted.)

When a particular statute can be violated in alternative ways, we look at the combination of elements that make up the crimes of which the defendant was convicted. State v. Mezick, 109 Or App 563, 565, 820 P2d 849 (1991).

Defendant was convicted of forgery under ORS 165.007(a) and ORS 165.013(l)(c), which require proof that the accused falsely made, completed or altered a written instrument. ² That element is not required for proof of fraudulent use of a credit card under the statute that defines the crime of which defendant was convicted. ORS 165.055(l)(a). That statute requires proof that the defendant “use[d] a credit card for the purpose of obtaining property or services,”* ³ an element that is not required by the forgery statutes.

Because each offense requires proof of an element that the other does not, they cannot be merged. The trial court did not err.

Affirmed.

1 Both provisions provide, in relevant part:

“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 ORS 165.007(l)(a) provides:

“(1) A person commits the crime of forgery in the second degree if, with intent to injure or defraud, the person:

“(a) Falsely makes, completes or alters a written instrument * *

ORS 165.013(l)(c) provides:

“(1) A person commits the crime of forgery in the first degree if the person violates ORS 165.007 and the written instrument is or purports to be any of the following:

‡ sfe * sf:

“(c) A deed, will, codicil, contract, assignment, commercial instrument or other document which does or may evidence, create, transfer, alter, terminate, or otherwise affect a legal right, interest, obligation or status * * (Emphasis supplied.)

3 ORS 165.055(l)(a) provides:

“(1) A person commits the crime of fraudulent use of a credit card if, with intent to injure or defraud, the person uses a credit card for the purpose of obtaining property or services with knowledge that:

“(a) The card is stolen * *