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State v. Gensitskiy

Court of Appeals of Oregon

August 2, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
VIKTOR S. GENSITSKIY, Defendant-Appellant.

          Argued and submitted December 22, 2015

         Washington County Circuit Court C131060CR; A156462 Suzanne Upton, Judge.

          Neil F. Byl, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Offce of Public Defense Services.

          Susan G. Howe, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Paul L. Smith, Deputy Solicitor General.

          Before Armstrong, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for, among other things, one count of aggravated identity theft and 27 counts of identity theft. Defendant contends that the trial court erred when it refused to merge the 27 counts of identity theft into the count of aggravated identity theft as lesser included offenses. Held: Because there are 27 identity-theft victims, under the anti-merger statute, defendant could be convicted of 27 separate identity-theft offenses. However, because the trial court entered convictions for 28 identity-theft offenses, the case is reversed and remanded for the trial court to merge one of the counts of identity theft into the count of aggravated identity theft.

         Convictions on Counts 1 and 3 reversed and remanded for entry of judgment of conviction for one count of aggravated identity theft; remanded for resentencing; otherwise affirmed.

          [287 Or.App. 130]

          ARMSTRONG, P. J.

         Defendant appeals a judgment of conviction for one count of aggravated identity theft (Count 1), 27 counts of identity theft (Counts 3 through 29), one count of second-degree burglary (Count 2), and one count of third-degree theft (Count 30). Defendant pleaded guilty to all those counts but reserved his argument that his guilty determinations on all 27 counts of identity theft should have merged into his guilty determination on the one count of aggravated identity theft, such that, for those 28 counts, he would be convicted of only one count of aggravated identity theft. On appeal, the state disagrees with defendant's merger argument but concedes that one of the counts of identity theft should have been merged into the count of aggravated identity theft. As explained below, we reject defendant's argument and accept the state's concession that the trial court should have merged one of the counts of identity theft, such that the judgment should reflect convictions for one count of aggravated identity theft and 26 counts of identity theft. Accordingly, we reverse and remand for the trial court to make that correction and remand for resentencing.

         The facts are few and undisputed. Defendant was pulled over by a police officer and, when asked by the officer, consented to a search of his car. During the search, the officer found 27 closed files taken from an apartment complex. The files contained the personal identification of at least one person each, including tax returns, employment paperwork, driver's licenses, and social security numbers. Each file contained the personal identification for at least one person whose identification was not in the other 26 files. Defendant was charged with one count of aggravated identity theft, 27 counts of identity theft, one count of second-degree burglary, and one count of third-degree theft. Defendant entered a guilty plea for each of those counts.

         At sentencing, defendant argued that all 27 counts of identity theft had to merge into the count of aggravated identity theft because they were lesser-included offenses. The trial court concluded, however, that the counts did not merge because there were separate victims, which precluded [287 Or.App. 131] merger. Defendant asserts on appeal that the trial court erred in coming to that conclusion.

         Merger of guilty determinations is governed by the anti-merger statute, ORS 161.067, and the case law construing it. That statute provides, in part:

"(1) 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 ...

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