DocketNumber: CR1301939; A157702
Citation Numbers: 276 Or. App. 578, 368 P.3d 79
Judges: Dehoog, Sercombe, Tookey
Filed Date: 2/24/2016
Status: Precedential
Modified Date: 9/9/2022
In this criminal case, following a bench trial, defendant was found guilty of two counts of second-degree burglary, ORS 164.215, and three counts of first-degree theft, ORS 164.055. One of the burglary counts and two of the theft counts related to defendant’s burglary of Willamette Valley Books and Bullion, a shop in Oregon City. During the burglary, defendant stole a safe from the shop; the safe contained a gun belonging to the business’s owner, as well as other items, such as jewelry and coins, that people had brought into the business to sell on consignment. Defendant was charged with one count of first-degree theft, Count 4, related to the theft of the gun. See ORS 164.055(l)(d). A second first-degree theft charge, Count 5, related to the theft of jewelry and coins worth $1,000 or more. See ORS 164.055(l)(a). At sentencing, defendant argued that the guilty verdicts on those two theft charges — Counts 4 and 5 — should merge. However, the trial court concluded that it was appropriate to enter separate convictions on those charges, stating that there “is a qualitative difference between thefts of safe, coins and jewelry [and] the theft of a firearm.” In other words, the court concluded that ORS 161.067(1) precluded merger.
On appeal, defendant asserts that the trial court erred in failing to merge the guilty verdicts on Counts 4 and 5 into a single conviction. In support of his contention, defendant cites State v. Slatton, 268 Or App 556, 558, 343 P3d 253 (2015), in which we held that ORS Ril.OOTll)
With respect to Count 4, the indictment alleged that defendant stole a firearm that was the property of the owner of the shop. As to Count 5, the indictment alleged that defendant stole the property of the business owner and of “Willamette Valley Books.” At trial, the state presented testimony from the business shop owner that the safe defendant stole contained “a gun, consignment ring, and some coins, not a lot of coins but some of our consignment coins, tokens.” Although the business owner specifically testified that he owned the gun, he did not specifically testify as to who owned the other items in the safe. However, he described some of the items in the safe as being “consignment” items. He also noted that a “nice selection of tokens” had come from “Bill,” who was “a good consignor.”
The trial court erroneously entered multiple convictions on Counts 4 and 5 based on its understanding that ORS 161.067(1) precluded merger. Thus, it did not consider
Convictions on Counts 4 and 5 vacated and remanded with instructions to determine whether those counts merge in light of ORS 161.067(2), and for resentencing; otherwise affirmed.
Pursuant to ORS 161.067(1),
“[w]hen 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.”
Under ORS 161.067(2),
“[w]hen 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. However, two or more persons owning joint interests in real or personal property shall be considered a single victim for purposes of determining the number of separately punishable offenses if the property is the subject of one of the following crimes:
“(a) Theft as defined in ORS 164.015.”