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State v. Slatton

Court of Appeals of Oregon

January 22, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
CHRISTOPHER VAL SLATTON, Defendant-Appellant

Argued and Submitted May 29, 2013

Lane County Circuit Court. 201107646. Gregory G. Foote, Judge.

Marc D. Brown, Deputy Public Defender, argued the cause for the appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Greg Rios, Assistant Attorney General, argued the cause for respondent. With him on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Rasmussen, Judge pro tempore.[*]

OPINION

[268 Or.App. 558] DUNCAN, P. J.

In this criminal case, a jury found defendant guilty of two counts of first-degree theft for violating two separate paragraphs of the first-degree theft statute, ORS 164.055 (2010), amended by Oregon Laws 2013, chapter 24, section 11.[1] Specifically, the jury found defendant guilty of violating ORS 164.055(1)(a) for committing theft of property worth more than $1,000 and of violating ORS 164.055(1)(d) for theft of a firearm. At sentencing,

Page 254

defendant argued that the trial court was required to merge the two guilty verdicts into a single conviction. The trial court rejected that argument and entered a judgment convicting defendant of, among other crimes, two counts of first-degree theft.[2]

Defendant appeals, assigning error to the trial court's refusal to merge the two first-degree theft guilty verdicts into a single conviction and to the court's imposition of restitution. We write only to address defendant's merger claim; we reject defendant's restitution claim without written discussion.

With respect to defendant's merger claim, the issue on appeal is whether merger of defendant's two guilty verdicts for first-degree theft is precluded by ORS 161.067(1). That provision, which is set out below, 268 Or.App. at, precludes merger of guilty verdicts for violations of separate statutory provisions if " each provision requires proof of an element that the other does not[.]" ORS 161.067(1).

Reviewing for errors of law, we conclude that ORS 161.067(1) does not preclude merger of defendant's two guilty verdicts for first-degree theft. As explained below, ORS 164.055(1)(a) and (d) are not separate statutory provisions for the purposes of ORS 161.067(1). They were not enacted to create different crimes; rather, they were enacted to specify different ways of committing a particular degree [268 Or.App. 559] of theft, which the legislature intended to punish more seriously than lesser degrees of theft. As also explained below, the first-degree theft statute, which lists ways that the basic crime of theft can be elevated into first-degree theft, is akin to other statutes that list elevating elements in separate paragraphs or subparagraphs; specifically, the first-degree theft statute is akin to the second-degree robbery statute, ORS 164.405, which the Supreme Court considered in State v. White, 346 Or. 275, 211 P.3d 248 (2009) ( White II ), and to the first-degree sexual abuse statute, ORS 163.427, which the Supreme Court considered in State v. Parkins, 346 Or. 333, 211 P.3d 262 (2009). In White II and Parkins, the court examined the text, context, and legislative history of those statutes and held that the elevating elements in those statutes were not separate statutory provisions for the purposes of ORS 161.067(1). Following the same analytical approach, we reach the same conclusion in this case with respect to ORS 164.055(1)(a) and (d). Accordingly, we reverse and remand for merger of defendant's two guilty verdicts for first-degree theft and resentencing, and we otherwise affirm.

We begin with a brief statement of the facts, which are few and undisputed. Defendant and two other men took property from a house and, after they were noticed by a person on an adjacent lot, fled the scene by car. Shortly thereafter, police officers stopped the car and arrested defendant and his companions. The officers found property taken from the house in the car and on the road. Specifically, they found a box with antiques in the car and a box with old mail and a collection of buttons on the road. Later, when the officers searched the yard of the house, they found other property that had been taken from the house, including a firearm wrapped in a blanket.

In addition to other charges, the state charged defendant with two counts of first-degree theft in violation of ORS 164.055. One count alleged that defendant " unlawfully and knowingly commit[ted] theft of stamps, postcards, antiques, and other personal property, of a total value of one thousand dollars or more[.]" The other count alleged that defendant " unlawfully and knowingly commit[ted] theft of a firearm[.]"

[268 Or.App. 560] ORS 164.055 defines first-degree theft. As relevant here, it provides that a person commits first-degree theft if the person commits one of six types of thefts. Specifically, it provides, in part:

" (1) A person commits the crime of theft in the first degree if, by means other than extortion, the person commits theft as defined in ORS 164.015 and:

Page 255

" (a) The total value of the property in a single or aggregate transaction is $1,000 or more;
" (b) The theft is committed during a riot, fire, explosion, catastrophe or other emergency in an area affected by the riot, fire, explosion, catastrophe or other emergency;
" (c) The theft is theft by receiving committed by buying, selling, borrowing or lending on the security of the property;
" (d) The subject of the theft is a firearm or explosive;
" (e) The subject of the theft is a livestock animal, a companion animal or a wild animal removed from habitat or born of a wild animal removed from habitat, pursuant to ORS 497.308 (2)(c); or
" (f) The subject of the theft is a precursor substance.
" * * * *
" (3) Theft in the first degree is a Class C felony."

In this case, defendant was charged with violating ORS 164.055(1)(a) for theft or property worth more than $1,000 and ORS 164.055(1)(d) for theft of a firearm.

A jury found defendant guilty of both counts and, at sentencing, defendant argued that the guilty verdicts should merge. The trial court rejected that argument and entered a judgment convicting defendant of, among other crimes, two counts of first-degree theft. This appeal followed.

As mentioned, on appeal the issue is whether merger is precluded by ORS 161.067(1), which provides,

" 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 [268 Or.App. 561] many separately punishable offenses as there are separate statutory violations." [3]

By its terms, ORS 161.067(1) precludes merger of guilty verdicts based on " the same conduct or criminal episode," when the verdicts are for violations of " two or more statutory provisions" and each statutory provision " requires proof of an element that the others do not[.]" In this case, the parties do not dispute that defendant's two first-degree theft guilty verdicts are based on the same conduct or criminal episode; the dispute is whether they are for violations of two or more statutory provisions.

The parties agree that, under White II, when determining whether two different sections, paragraphs, or subparagraphs of a statute constitute separate statutory provisions for merger purposes, the " fundamental inquiry" is whether the text, context, and legislative history of the statute demonstrate that the legislature intended to create a single crime or two separate crimes. 346 Or. at 285 (citing State v. White, 341 Or. 624, 638-40, 147 P.3d 313 (2006); State v. Kizer, 308 Or. 238, 242-43, 779 P.2d 604 (1989); State v. Barrett, 331 Or. 27, 35-36, 10 P.3d 901 (2000)). But, they disagree about whether the text, context, and legislative history of the first-degree theft statute, ORS 164.055, demonstrate that the legislature intended to create one crime or separate crimes.

Defendant argues that ORS 164.055(1)(a) and (d) are not separate statutory provisions for the purposes of ORS 161.067(1). He contends that " the theft statutes begin with a basic concept of theft, which is then elevated to first-degree if any of the additional elements in ORS 164.055 are present" and that the additional elements are not separate statutory provisions for the purposes of ORS 161.067(1), rather they are " merely different theories of proving [first-degree [268 Or.App. 562] theft]." In support of his argument, defendant points out that, in Wh ...


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