State v. Haddon

• Decision Date: 14 June 2017
• Docket Number: A156293
• Citation: 286 Or.App. 191,399 P.3d 458
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Sheri Lynn HADDON, Defendant-Appellant.
• Court: Oregon Court of Appeals

286 Or.App. 191

399 P.3d 458

STATE of Oregon, Plaintiff-Respondent,

v.Sheri Lynn HADDON, Defendant-Appellant.

A156293

Court of Appeals of Oregon.

Submitted November 19, 2015.

June 14, 2017

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

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

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

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 1[:] 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 utter personal identification of [the victim];

"Count 3[:] The defendant * * * did unlawfully, with the intent to injure or defraud, use a credit card, to wit: a Visa card, for the purpose of obtaining property, to wit: ear buds, with knowledge that said credit card was stolen;"Count 4[:] The defendant * * * in an act and transaction separate and distinct from that alleged in Count 3, did unlawfully, with the intent to injure or defraud, use a credit card, to wit: a Visa card, for the purpose of obtaining property, to wit: cigarettes, with knowledge that said credit card was stolen[.]"

At sentencing, defendant argued that, pursuant to ORS 161.067(1), the counts of identity theft should merge with the counts of fraudulent use of a credit card. Defendant contended that a person could not "commit fraudulent use of a credit card without committing the act of identity theft[,]" and that the same elements made up "each of these counts." The court did not merge any of the guilty verdicts.

Defendant appeals, assigning error to the court's failure to merge each pair of guilty verdicts. 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. The state disagrees, contending that "it is possible to commit each crime without committing the other."

In relevant part, the anti-merger statute, ORS 161.067(1), provides that "[w]hen 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 ORS 161.067(1). Answering three questions determines whether guilty verdicts for violations of multiple statutory provisions can result in entry of separate convictions under ORS 161.067(1) :

"(1) Did defendant engage in acts that are 'the same conduct or criminal episode,' (2) did defendant's acts violate two or more 'statutory provisions,' and (3) does each statutory 'provision' require 'proof of an element that the others do not.' "

Crotsley , 308 Or. at 278, 779 P.2d 600 ; see also State v. Barnes , 209 Or. App. 332, 336, 147 P.3d 936 (2006), rev. den. , 342 Or. 256, 151 P.3d 930 (2007) (applying that analysis). In this case, there is no dispute on appeal that for each pair of guilty verdicts, defendant engaged in acts constituting the same conduct or criminal episode and that her acts violated two separate statutory provisions. The parties dispute only the answer to the third question, whether each statutory provision requires proof of an element that the others do not. We focus on that question.

"The elements of proof of a criminal offense are controlled by the statute defining the offense, not by the factual circumstances recited in the indictment." State v. Atkinson , 98 Or. App. 48, 50, 777 P.2d 1010 (1989). An exception to that rule exists, however. We have explained that,

"when a statute contains alternative forms of a single crime (as, for example, unlawful use of a weapon, which can be committed either by (1) carrying or possessing a dangerous weapon or by (2) attempting to use one), we will look to the indictment to determine which form is charged, and we use the elements of the charged version in the merger analysis."

State v. Gray , 240 Or. App. 599, 609 n. 4, 249 P.3d 544, rev. den. , 350 Or. 574, 258 P.3d 1240 (2011) ; see also State v. Alvarez , 240 Or.App. 167, 171, 246 P.3d 26 (2010), rev. den. , 350 Or. 408, 256 P.3d 121 (2011) (when a statute provides alternative terms within an offense, "we will look to the indictment to determine which form is charged, and we use the elements of the charged version in the merger analysis" (emphasis added)).³ As a consequence, the alternative terms, which are neither charged nor "require[d]" to be proven, are not part of the merger analysis. Alvarez, 240 Or.App. at 171, 246 P.3d 26 ; see also ORS 161.067(1) (providing that when the same conduct or episode violates two or more provisions and each "requires proof of an element that the others do not," the offenses do not merge (emphasis added)). "[O]nce we rely on the indictment to determine which of the alternative forms of the crime are at issue, we disregard particular facts alleged in the indictment or proved at trial" and state the statutory elements of the charged form of the crime. Alvarez , 240 Or.App. at 172, 246 P.3d 26 (citing State v. Cufaude , 239 Or.App. 188, 192-93, 244 P.3d 382 (2010) ).

Consistent with that analysis, we frame our issue by comparing the elements of each respective offense. We examine each offense, using the indictment where the statute provides alternative terms, in order to identify the elements of each offense as the state was required to prove them in this case. A person commits the offense of identity theft, as charged here, "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." ORS 165.800(1). The "personal identification" of another person is defined to include "[t]he identifying number of a person's depository account at a 'financial institution' or 'trust company', * * * or a credit card account." ORS 165.800(b)(H).⁴ Thus, for purposes of our merger analysis, the relevant elements of identity theft as charged in Counts 1 and 2 of the indictment are that defendant (1) with intent to deceive or defraud, (2) possessed or uttered (3) the personal identification (i.e. , the credit card) (4) of another person.⁵ See generally State v. Breshears , 281 Or.App. 552, 556, 383 P.3d 345 (2016) (identifying and paraphrasing the form of the offense charged). See also State v. Luers , 211 Or.App. 34, 62–64, 153 P.3d 688, adh'd to as mod ified on recons , 213 Or.App. 389, 160 P.3d 1013 (2007) (determining that recklessly placing a person in danger of injury or property in danger of damage are merely alternative "circumstances" or "theories" and are not separate legislative concerns about arson under ORS 164.325(1)(b) ); cf. State v.Pipkin , 354 Or. 513, 523-24, 316 P.3d 255 (2013) (determining that unlawfully "entering" or "remaining" in a building are merely alternative ways to prove unlawful presence and are not separate elements of burglary under ORS 164.215 ).

A person commits the offense of fraudulent use of a credit card "if, with intent to injure or defraud, the person uses a credit card for the purpose of obtaining property or services with knowledge that [t]he credit card is stolen or forged; [t]he card has been revoked or canceled; or [f]or any other reason the use of the card is unauthorized by either the issuer or the person to whom the credit card is issued." ORS 165.055(1) (paragraph letters omitted); cf. State v. Kizer , 308 Or. 238, 243, 779 P.2d 604 (1989) (insertion of paragraph letters (a) and (b) in a single sentence in forgery statute, ORS 165.007(1), were for ease of reading, not for designation of separate statutory elements or provisions for merger analysis). Thus, for purposes of our merger analysis, the relevant elements of fraudulent use of a credit card as charged in Counts 3 and 4 of the indictment are that defendant (1) with intent to injure or defraud (2) used (3) a credit card (4) with knowledge that the card was stolen (5) for the purpose of obtaining property or services.⁶ See generally Breshears , 281 Or.App. at 556, 383 P.3d 345 (identifying and paraphrasing the form of the offense charged).

We recognize that fraudulent use of a credit card requires proof of at least one element that identity theft does not. Fraudulent use of a credit card requires proof that...