Submitted January 30, 2014
Washington County Circuit Court, No. C112098CR, James Lee Fun, Jr., Judge.
Peter Gartlan, Chief Defender, and Susan Fair Drake, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Matthew J. Lysne, Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Egan, Judge, and De Muniz, Senior Judge.
[266 Or.App. 354] EGAN, J.
Defendant, who was convicted on one count of organized retail theft, ORS 164.098, and nine counts of first-degree theft, ORS 164.055, challenges his conviction on the organized retail theft count, as well as the trial court's failure to merge the first-degree theft convictions into the organized retail theft conviction. We reject without discussion defendant's argument that the trial court erred in denying his motion for judgment of acquittal on the organized retail theft charge. With respect to merger, as explained below, we reverse and remand with instructions to merge the guilty verdicts on first-degree theft with the guilty verdict on organized retail theft.
Because defendant was convicted after trial, we set out the facts in the light most favorable to the state. State v. Johnson, 342 Or. 596, 598, 157 P.3d 198 (2007), cert den, 552 U.S. 1113, 128 S.Ct. 906, 169 L.Ed.2d 753 (2008). On September 22 and 23, 2011, defendant and an accomplice, Briones, visited numerous malls and retail establishments in the Portland area, including, as their last stop, Washington Square in Washington County. Defendant and Briones flew into Seattle and defendant rented a car, which they drove to the Portland area on September 21. On September 22, defendant entered numerous retail establishments in the Portland area and shoplifted items. On September 23, defendant had Briones take the various stolen items to retail establishments in malls to return the items and seek refunds in the form of gift cards. After Briones had successfully returned items, she gave the gift cards to defendant. Defendant also shoplifted more items on September 23. Defendant's shoplifting activities were detected by security personnel on September 23, and as a result, defendant and Briones were apprehended by Tigard Police. Numerous items of evidence, including stolen items, gift cards, and receipts, were found in their car.
Defendant was charged with nine counts of first-degree theft, ORS 164.055(1)(c), alleged to have occurred in Washington County on or about September 23, with each [266 Or.App. 355] count alleging theft from a different store. Each of the nine counts of first-degree theft in this case alleged that defendant " did unlawfully and with the intent to appropriate property to the defendant, buy, sell, and borrow/lend on the security of merchandise and money * * *."
The remaining count, organized retail theft, ORS 164.098, was charged as follows:
" The defendant, on or about September 23, 2011, in Washington County, Oregon, while acting in concert with another person, did unlawfully commit theft and theft by [266 Or.App. 356] receiving, the subject of the theft being merchandise and money taken from a mercantile establishment and the value of the merchandise taken within a 90-day period exceeding $5,000."
As noted, defendant asserts that all nine of the guilty verdicts for first-degree theft must merge into the guilty ...