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State v. Gensitskiy

Supreme Court of Oregon

July 25, 2019

STATE OF OREGON, Respondent on Review,
v.
VIKTOR S. GENSITSKIY, Petitioner on Review.

          Argued and submitted September 10, 2018

          On review from the Court of Appeals.[*] (CC C131060CR); (CA A156462)

          Lauren P. Robertson, Assistant Attorney General, Salem, argued the cause and fled the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Neil F. Byl, Deputy Public Defender, Salem, argued the cause and fled the brief for petitioner on review. Also on the brief was Ernest G. Lannet, Chief Defender, Offce of Public Defense Services.

          Before Walters, Chief Justice, and Balmer, Nakamoto, Flynn, Duncan, Nelson, and Garrett, Justices. [**]

          Garrett, J., dissented and filed an opinion in which Balmer, J., joined.

         [365 Or. 264] Case Summary:

         Defendant was charged with 27 counts of identity theft and, based on the same conduct, one count of aggravated identity theft. Defendant pleaded guilty to the charges but argued that each of the identity thefts was a lesser-included offense of the aggravated identity theft and, therefore, should merge into the aggravated identity theft. The trial court rejected that argument and entered separate convictions for each of the identity thefts and the aggravated identity theft. The Court of Appeals affirmed. Held: (1) When the state aggregates identity thefts to charge aggravated identity theft, the identity thefts are lesser-included offenses of the aggravated identity theft and, pursuant to ORS 161.067(1), they should merge into the aggravated identity theft count; (2) the subsection of the anti-merger statute, ORS 161.067(2), that prohibits merging of offenses with multiple victims, applies only when the same conduct or criminal episode violates a single statutory provision; (3) aggravated identity theft is not the same statutory provision as identity theft; and (4) therefore, ORS 161.067(2) does not prohibit those counts from merging.

         The decision of the Court of Appeals is reversed. The judgment of the circuit court is reversed, and the case is remanded to the circuit court for further proceedings.

         [365 Or. 265] DUNCAN, J.

         Aggravated identity theft is denned by ORS 165.803, which the legislature enacted to create a new, more serious crime than identity theft as defined by ORS 165.800. The state can charge a defendant with aggravated identity theft by aggregating multiple identity thefts. In this case, the state charged defendant with one count of aggravated identity theft, based on his possession of files containing personal information regarding 27 other persons. Based on that same conduct, the state also charged defendant with 27 counts of identity theft. Defendant pleaded guilty to all the counts, but argued that his identity thefts merged into his aggravated identity theft because each of the identity thefts was a lesser-included offense of the aggravated identity theft. The trial court rejected defendant's argument and entered separate convictions for each of the identity thefts and the aggravated identity theft.

         Defendant appealed, renewing his argument that his identity thefts merged into his aggravated identity theft because each of his identity thefts was a lesser-included offense of his aggravated identity theft. The state did not dispute that each of defendant's identity thefts was a lesser-included offense of his aggravated identity theft, but argued that, because there were 27 victims, the trial court could impose 27 separate convictions. The Court of Appeals agreed with the state. State v. Gensitskiy, 287 Or.App. 129, 401 P.3d 1219 (2018).

         On review, we hold that the trial court erred in failing to merge defendant's multiple identity thefts into his aggravated identity theft. As we explain below, the legislature intended that, if the state aggregates multiple identity thefts to serve as the basis for an aggravated identity theft, the identity thefts are lesser-included offenses of the aggravated identity theft. Because the identity thefts are lesser-included offenses of the aggravated identity theft, they merge into the aggravated identity theft under ORS 161.067(1), which, as relevant here, requires merger when the same conduct violates two statutory provisions and all the elements of one of the provisions are included in the other. Contrary to the state's argument, which the Court of [365 Or. 266] Appeals accepted, ORS 161.067(2) does not preclude merger. ORS 161.067(2) provides, in part, that when the same conduct-"though violating only one statutory provision"- involves two or more victims, there are as many separately punishable offenses as there are victims. ORS 161.067(2) is applicable only when the same conduct or criminal episode violates a single statutory provision. Thus, it does not apply when, as here, the conduct at issue violates the identity theft statute and the aggravated identity statute, which are separate statutory provisions. Finally, merger of defendant's identity thefts into his aggravated identity theft is consistent with the legislative goal of ensuring accurate criminal histories because a conviction for the aggregate offenses accurately reflects the component offenses and their victims.

         For those reasons, we reverse the decision of the Court of Appeals and the judgment of the trial court, and we remand for merger of defendant's identity thefts into his aggravated identity theft and resentencing.

         I. HISTORICAL AND PROCEDURAL FACTS

         During a traffic stop, defendant consented to a search of his car, which resulted in the discovery of 27 files he had taken from the rental office of an apartment complex. The files contained information about tenants of the complex, including information that constituted "personal identification" for the purposes of the identity theft statutes, such as names, addresses, telephone numbers, driver's license numbers, and Social Security numbers. See ORS 165.800(4)(b) (defining "personal identification"). Each of the 27 files contained the personal identification of at least one person whose personal identification was not in any of the other files.

         A. Trial Court Proceedings

         As mentioned, the state charged defendant with one count of aggravated identity theft and 27 counts of identity theft.[1] Identity theft is defined by ORS 165.800, which provides, in part:

[365 Or. 267] "(1) A person commits the crime of identity theft if the person, with the intent to deceive or to defraud, obtains, possesses, transfers, creates, utters or converts to the person's own use the personal identification of another person.
"(2) Identity theft is a Class C felony"

         In keeping with the wording of ORS 165.800, each of the identity theft counts alleged that defendant "did unlawfully, with the intent to deceive or defraud, obtain, possess, transfer, create, utter or convert to [his] own use the personal identification of another[.]" In addition, each of those counts alleged that the identity theft was committed as part of "the same act and transaction" as the other identity theft counts and the aggravated identity theft count. The identity theft counts did not include the names of the persons whose identifications were at issue, but they did specify that each of the identity thefts involved "personal identification from a different person" than in the other identity thefts.[2]

         Based on the conduct underlying the identity theft counts, the state also charged defendant with one count of aggravated identity theft, which is defined by ORS 165.803. Specifically, the state charged defendant with violating ORS 165.803(1)(d), which provides:

"(1) A person commits the crime of aggravated identity theft if:
[365 Or. 268] "(d) The person violates ORS 165.800 and has in the person's custody, possession or control 10 or more pieces of personal identification from 10 or more different persons.
"(2) Aggravated identity theft is a Class B felony."

         Pursuant to a plea agreement, defendant signed a plea petition in which he agreed to plead guilty to all counts and expressly reserved the right to argue that the identity thefts merged into the aggravated identity theft. At the plea hearing, defendant pointed out that the state had alleged that each of the identity thefts was part of the same act and transaction as the aggravated identity theft, and he argued that the trial court could not convict him for "multiple single victim crimes" and a "multiple victim" crime, based on the same conduct and victims. The state disagreed, arguing that the identity thefts did not merge into the aggravated identity theft because each identity theft had a different victim. The trial court accepted the state's argument and entered separate convictions for each of the identity thefts and the aggravated identity theft.

         B. Court of Appeals Proceedings

         Defendant appealed, renewing his argument that, when the state aggregates identity thefts in order to charge aggravated identity theft, each identity theft is a lesser-included offense of the aggravated identity theft. In support of his argument, defendant relied on ORS 161.067, which establishes rules for when statutory violations, based on the same conduct or criminal episode, constitute "separately punishable offenses." 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 as there are separate statutory violations.
"(2) When 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. ***
"(3) When the same conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involves repeated violations of the [365 Or. 269] same statutory provision against the same victim, there are as many separately punishable offenses are there are violations, except that each violation, to be separately punishable under this subsection, must be separated from other such violations by a sufficient pause in the defendant's criminal conduct to afford the defendant an opportunity to renounce the criminal intent."

         ORS 161.067 identifies circumstances in which a court can enter separate convictions for violations based on the same conduct or criminal episode. State v. White, 341 Or. 624, 637-38, 147 P.3d 313 (2006). In other words, it identifies circumstances in which violations based on the same conduct or criminal episode do not merge; if those circumstances do not exist, then the violations merge.

         Defendant argued that ORS 161.067(1) applied, but that its conditions were not satisfied, and, therefore, the trial court could not enter separate convictions under that subsection for his identity thefts and his aggravated identity theft. ORS 161.067(1) applies when "the same conduct or criminal episode violates two or more statutory provisions," and it allows for separate convictions only when "each provision requires an element that the others do not." Thus, as relevant here, a court cannot enter separate convictions under ORS 161.067(1) for violations of two statutory provisions if the violations are based on the same conduct and one of the violations is a lesser-included offense of the other. See State v. Tucker, 315 Or. 321, 331, 845 P.2d 904 (1993) (holding that the requirements for separate convictions under former ORS 161.062(1) (1985), repealed by Or Laws 1999, ch 136, § 1-which is the "not quite identical twin" of ORS 161.067(1), State v. Crotsley, 308 Or. 272, 276 n 3, 779 P.2d 600 (1989)-"are not met where one offense charged truly is a lesser included offense of another offense charged, that is, when the former has no elements not also present in the latter, even though the latter has additional elements not present in the former"). Applying that rule, defendant argued that his identity thefts merged into his aggravated identity theft. Defendant's theory was that, to prove aggravated identity theft under ORS l65.803(1)(d), the state was required to prove at least 10 identity thefts as lesser-included offenses and that, in this case, the state had [365 Or. 270] based the aggravated identity theft count on all 27 of the identity theft counts because all of the identity thefts were alleged to have been committed as part of the same act and transaction as the aggravated identity theft.

         The state did not dispute that each of defendant's identity thefts was a lesser-included offense of the aggravated identity theft or that, as a general rule, ORS 161.067(1) requires merger of lesser-included offenses into greater-inclusive offenses. But the state argued that ORS 161.067(2), as interpreted by the Court of Appeals in State v. Munoz-Juarez, 271 Or.App. 261, 350 P.3d 516 (2015), creates an exception to that general rule when the offenses have different victims. It took the position that, "[w]ere it not for ORS 161.067(2), all of defendant's counts of identity theft would, in fact, merge with the greater offense of aggravated identity theft," but that ORS 161.067(2) requires "as many separately punishable offenses as there are victims." Because there were 27 identity thefts, each with its own victim, the state argued that there had to be 27 punishable offenses. Accordingly, the state conceded that one of the identity thefts merged into the aggravated identity theft, but contended that the other 26 identity thefts did not, explaining:

"ORS 161.067(1) and (2) should compel the merger of one of defendant's counts of identity theft with the aggravated identity theft count. Subsection (1) requires the merger, because identity theft is a lesser-included offense. However, ORS 161.067(2) forecloses merger of any of the remaining counts of identity theft, because each count represents a different victim."

(Emphasis in original.)

         The Court of Appeals agreed with the state, concluding that its decision in Munoz-Juarez was controlling. Gensitskiy, 287 Or.App. at 133. In Munoz-Juarez, the Court of Appeals relied on a footnote in one of its earlier decisions, State v. Owens, 102 Or.App. 448, 795 P.2d 569, rev den, 311 Or. 13 (1990), for the proposition that "'ORS 161.067(2) forecloses merger in all cases in which a single criminal episode involves multiple victims.'" Munoz-Juarez, 271 Or.App. [365 Or. 271] at 265 (quoting Owens, 102 Or.App. at 452 n 6) (emphasis in Owens)).

         In Owens, the defendant was convicted of first-degree robbery and third-degree theft for using force against a store clerk to steal a carton of cigarettes. Owens, 102 Or.App. at 450. The Court of Appeals held that the guilty verdicts for those offenses did not merge under ORS 161.067(1), because each of the offenses required proof of an element that the other did not. Id. It then added that, even if that was incorrect, merger was foreclosed by ORS 161.067(2) because the offenses had different victims; specifically, the clerk was the victim of the robbery and the store owner was the victim of the theft. Id. at 451 (holding that, because "there were two victims of defendant's offenses," there were two separately punishable offenses under ORS 161.067(2)).

         Judge Graber dissented, noting that ORS 161.067(2) "plainly refers and applies only to 'conduct *** violating only one statutory provision.'" Id. at 454 (Graber, J., dissenting) (emphasis in original). Judge Graber concluded that the majority had erred in concluding that ORS 161.067(2) precluded merger:

"It is correct, as the majority notes, that there were separate victims of defendant's violations of two statutes. Nevertheless, the majority dances around the fact that there were two statutes violated [the robbery statute and the theft statute]. ORS 161.067(2) is very clearly limited to circumstances where the defendant's conduct violates only one statutory provision."

Id. (emphasis in original). Thus, in Owens, the Court of Appeals majority applied ORS 161.067(2) to violations of two statutory provisions and held that violations against two different victims did not merge.

         Owens did not involve the aggregation of multiple lower-classification crimes against individual victims into a single higher-classification crime against the same victims as a group. But two later Court of Appeals cases did, and in those cases the Court of Appeals held that the lower-classification component crimes merged into the higher-classification aggregate crime. In State v. Fujimoto, 266 Or [365 Or. 272] App 353, 359-60, 338 P.3d 180 (2014), the defendant was found guilty of multiple counts of first-degree theft, based on thefts from different stores, and one count of organized retail theft, based on the same thefts. The Court of Appeals held that the first-degree thefts merged into the organized retail theft. Id. Similarly, in State v. Chappell, 286 Or.App. 679, 401 P.3d 242 (2017), the defendant was found guilty of multiple counts of first-degree theft, based on thefts from different persons, and one count of aggravated theft, based on the same thefts. The state conceded that the first-degree thefts merged into the aggravated first-degree theft, and the Court of Appeals agreed:

"As the state acknowledges, Counts 3, 6, and 7 [the first-degree theft counts] 'were subsumed by' Count 5 [the aggravated first-degree theft count]. Therefore, the guilty verdicts on Counts 3, 6, and 7 should have been merged into the guilty verdict on Count 5. *** The [trial] court could not impose separate convictions for individual thefts that had been aggregated to support an additional, greater theft conviction?

Id. at 680 (emphasis added).

         To summarize, in Owens, the Court of Appeals ruled that ORS 161.067(2) applies to violations of two or more statutory provisions and precludes merger of offenses against different victims. Applying that rule, the court held that the defendant's offense against one victim did not merge into his offense against a different victim. But later, in Fujimoto and Chappell, the court held that offenses against different victims, which were aggregated to serve as the basis for a more serious offense, merged into the more serious offense.

         In Fujimoto and Chappell, the state did not argue that ORS 161.067(2) required separate convictions for each victim. But, as mentioned, the state has made that argument in this case, arguing in the Court of Appeals that one of defendant's identity thefts merged into his aggravated identity theft, but the others did not. The Court of Appeals accepted that argument and reversed and remanded for merger of one of defendant's identity thefts into his aggravated identity theft and for resentencing. Gensitskiy, 287 Or.App. at 133. On defendant's petition, we allowed review.

         [365 Or. 273] II. PARTIES' ARGUMENTS ON REVIEW

         On review, defendant renews his argument that, under ORS 161.067(1), all his identity thefts merge into his aggravated identity theft because the former are lesser-included offenses of the latter. He further argues that ORS 161.067(2) does not apply because, as Judge Graber asserted in Owens, it applies only when the same conduct or criminal episode violates a single statutory provision.

         In response, the state renews its argument that ORS 161.067(2) applies and precludes merger of all but one of defendant's identity thefts into his aggravated identity theft because each of the identity thefts has a different victim. In addition, the state retracts its concession that all of defendant's identity thefts would merge into his aggravated identity theft under ORS 161.067(1), were it not for ORS 161.067(2). It now contends that defendant's offenses do not merge under ORS 161.067(1), which applies to violations of "two or more statutory provisions," because the identity theft statute and the aggravated identity theft statute "are not separate statutory provisions." It also appears to argue that, even if the identity theft statute and the aggravated identity theft statute are separate statutory provisions, only one of defendant's identity thefts is a lesser-included offense of his aggravated identity theft because the state is not required to prove more than one identity theft in order to prove aggravated identity theft under ORS 165.803(1)(d).

         III. ANALYSIS

         Before turning to the parties' arguments, we note that the general issue in this case-how to treat multiple statutory violations based on the same conduct or criminal episode-"is one of the most vexing in criminal law." State v. Cloutier, 286 Or. 579, 582-83, 596 P.2d 1278 (1979). And it is one that can arise at different points in a criminal proceeding. It can affect, among other things, whether statutory violations can result in separate convictions and sentences, and whether they can be prosecuted in separate proceedings. Id. at 585. As this court has observed, "many incidents that would appear as a single 'act' or 'crime' from a nonlegal perspective are also violations of several distinct criminal [365 Or. 274] laws," but, "[i]t does not follow, merely because a defendant can be charged with more than one violation of a statute, that the legislature also meant each violation to be the basis for a separate conviction or sentence, or that an objecting defendant may be tried for each in a separate proceeding." Id. at 583, 585.

         The parties' arguments in this case concern the legislative intent underlying the aggravated identity theft statute, ORS 165.803, and the merger statute, ORS 167.067. We turn first to the aggravated identity theft statute. As we explain below, the text, context, and legislative history all support the conclusion that the legislature defined aggravated identity theft to include identity thefts and did not intend to allow a defendant to be convicted of both the greater-inclusive offense and its lesser-included offenses.

         A. The Aggravated Identity Theft Statute, ORS 165.803

         When interpreting a statute, our task is to ascertain the legislature's intent. State v. Gaines, 346 Or. 160, 171, 206 P.3d 1042 (2009); ORS 174.020. To do so, we look first to the text and context of the statute. Gaines, 346 Or at 171. Therefore, we return to the text of the aggravated identity theft statute, ORS 165.803, and the identity theft statute, ORS 165.800, to which it refers. See PGE v. Bureau of Labor and Industries, 317 Or. 606, 611, 859 P.2d 1143 (1993) (stating that the context of a statute includes other related statutes). ORS 165.803 provides, in part:

"(1) A person commits the crime of aggravated identity theft if:
"(a) The person violates ORS 165.800 in 10 or more separate incidents within a 180-day period;
"(b) The person violates ORS 165.800 and the person has a previous conviction for aggravated identity theft;
"(c) The person violates ORS 165.800 and the losses incurred in a single or aggregate transaction are $10, 000 or more within a 180-day period; or
"(d) The person violates ORS 165.800 and has in the person's custody, possession or control 10 or more pieces of personal identification from 10 or more different persons.
[365 Or. 275] "(2) Aggravated identity theft is a Class B felony." ORS 165.800 provides, in part:
"(1) A person commits the crime of identity theft if the person, with the intent to deceive or to defraud, obtains, possesses, transfers, creates, utters or converts to the person's own use the personal identification of another person.
"(2) Identity theft is a Class C felony."

         The text and context of ORS 165.803 show that the legislature defined aggravated identity theft to include identity theft. They also show that the legislature intended to allow the state to aggregate multiple identity thefts in order to secure a conviction for aggravated identity theft, which is a more serious crime.

         The legislative history of ORS 165.803 confirms that understanding. The legislature enacted the identity theft statute, ORS 165.800, in 1999. Or Laws 1999, ch 1022, § 1. It enacted the aggravated identity theft statute, ORS 165.803, eight years later, in 2007, in response to concerns about the limitations of the identity theft statute in large-scale identity theft cases. Or Laws 2007, ch 584, § 1. As described below, the subsection of the aggravated identity theft statute at issue here, ORS 165.803(1)(d), was intended to enable the state to aggregate multiple identity thefts into a single aggravated identity theft, resulting in smaller indictments, more efficient prosecutions, and more severe penalties.

         ORS 165.803 began as Senate Bill (SB) 464 (2007). SB 464 was sponsored by the Regional Economic Crime Investigation Center, and former Washington County Deputy District Attorney Dan Thennell helped draft it. Tape Recording, Senate Committee on Commerce, SB 464, February 12, 2007, Tape 11, Side A (statement of Dan Thennell). As Thennell explained, SB 464 was intended to accomplish two goals: (1) to enable the state to convict prolific identity thieves of a more serious offense, for which a greater punishment could be imposed; and (2) to make the prosecution of large-scale identity theft cases more efficient. Id. One way that SB 464 would achieve both of those goals was by allowing the state to aggregate multiple identity thefts into one aggravated identity theft. Id. As Thennell [365 Or. 276] told the Senate Commerce Committee at the first hearing on the bill, SB 464 would allow the state

"to target the most prolific identity thieves and to also allow these crimes to be prosecuted efficiently in a smaller indictment which would ease resources of court staff, department of corrections."

Id. Thennell also told the committee that the aggregation of multiple identity thefts would not relieve prosecutors of the burden of proving the identity thefts:

"If we could encompass 10 victims into one different count of identity theft it doesn't ease the burden on the prosecutor to prove the elements of the crime, but it allows us to encompass more victims to have their day in court and to in some respects put a face on what was done to them. I believe that if Senate Bill 464 is passed it will allow these large cases of identity theft to be done in smaller indictments and to allow people who are committing the worst of the worst to get more time”

Id. (emphases added).

         Similarly, Captain Jeff Groth of the Tualatin Police Department told the committee that SB 464 would simplify prosecutions "by allowing for the charging of aggravated identity theft as opposed to numerous, numerous charging documents." Id. (statement of Jeff Groth) (emphasis added). Likewise, Marion County Sheriff Raul Ramirez, President of the Oregon State Sheriffs Association, told the committee that SB 464 would "allow multiple-profile and large-loss fraud cases to be accurately charged using fewer numbers of counts to fully encompass the fraudulent transactions and each victim's losses." Id. (statement of Raul Ramirez) (emphasis added). As Washington County Deputy District Attorney Gina Skinner explained, SB 464 would improve the processing of large-scale identity theft cases which were

"inefficient for every step of the court system. For the juries, for the judges, for the court staff-they have to fill out all this paperwork, and we want to be able to capture that and yet allow as many victims as possible to be listed victim[s] and to be able to adequately get restitution at the end of [365 Or. 277] the trial, to be able to be ...

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