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State v. Haddon

Court of Appeals of Oregon

June 14, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
SHERI LYNN HADDON, Defendant-Appellant.

          Submitted November 19, 2015

         Lane County Circuit Court 201315587 Jay A. McAlpin, Judge.

          Peter Gartlan, Chief Defender, and Shawn E. Wiley, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Karla H. Ferrall, Assistant Attorney General, fled the brief for respondent.

          Before Duncan, Presiding Judge, and DeVore, Judge, and Wollheim, Senior Judge.

         Convictions on Counts 1, 2, 3, and 4 reversed and remanded for entry of a judgment of conviction for two counts of identity theft; remanded for resentencing; otherwise affrmed.

         Case Summary: Defendant appeals a judgment of conviction for two counts of identity theft and two counts of fraudulent use of a credit card. She contends that the trial court erred in denying her motion to merge guilty verdicts for those two offenses, as required by Oregon's anti-merger statute, ORS 161.067. She argues that only a single conviction for identity theft should have been entered for each pair of verdicts for identity theft and fraudulent use of a credit card because the separate statutory provisions do not each require proof of an element that the other does not. Held: The trial court erred in entering separate guilty verdicts in each of those pairs of offenses. As to each pair of offenses, the offense of identity theft and fraudulent use of a credit card merge, given the forms of those offenses that were alleged in the indictment. As alleged, each offense does not contain a unique element, one not found in the other offense. [286 Or.App. 192]

         Convictions on Counts 1, 2, 3, and 4 reversed and remanded for entry of a judgment of conviction for two counts of identity theft; remanded for resentenc-ing; otherwise affrmed. [286 Or.App. 193]

          DeVORE, J.

         Defendant appeals a judgment of conviction for two felony counts of identity theft and two misdemeanor counts of fraudulent use of a credit card. She contends that the trial court erred in denying her motion to merge guilty verdicts for those two offenses, as required by Oregon's anti-merger statute, ORS 161.067. We review for legal error whether a trial court must merge guilty verdicts, State v. Crotsley, 308 Or. 272, 779 P.2d 600 (1989), and reverse and remand.

         In this case, the essential facts are undisputed, and the details are largely irrelevant to the resolution of the legal error at issue. This case arose from defendant's use of a stolen credit card. Defendant used the credit card to make two unauthorized purchases in separate locations on separate dates.

         For each of the two uses of the stolen credit card, defendant was charged with a pair of offenses-one count of identity theft and one count of fraudulent use of a credit card. Defendant was charged with and found guilty of two counts of identity theft under ORS 165.800 (Counts 1 and 2), two counts of fraudulent use of a credit card under ORS 165.055 (Counts 3 and 4), and one count of third-degree theft under ORS 164.043 (Count 5).[1] In part, the indictment alleged:

"Count l[:] The defendant *** did unlawfully, with the intent to deceive or defraud, possess and utter personal identification of [the victim];
"Count 2 [:] The defendant * * * in an act and transaction separate and distinct from that alleged in Count 1, did unlawfully, with the intent to deceive or defraud, possess and ...

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