A Book from the Library of Defense
Namespaces
Variants
Actions

Library Collections

Webinars & Podcasts
Motions
Disclaimer

Could 10 Counts of Fraudulent Use of a Credit Card Merge Into a Single Theft?

From OCDLA Library of Defense
Jump to: navigation, search
This wikilog article is a draft, it was not published yet.

by: Ryan • November 21, 2011 • no comments

Assume that the defendant fraudulently uses a credit card twenty times, and he is charged with twenty counts of fraudulent use of a credit card (fucc). He is also charged with one count of theft in the first degree, because the individual misdemeanor thefts from each credit card transaction are aggregated into a single felony theft.

I have written before about this type of scenario when analyzing whether this is one long criminal episode or multiple short episodes. But there's an argument that I was far too conservative in my analysis.

As you know if you have been following my posts on merger, if two crimes are from the same criminal episode and there is not a sufficient pause between them, the state must prove two things to keep the counts from merging: failure to prove either means the counts merge into a single conviction. The state must prove (1) that the crimes do not arise from the same statutory provision and (2) that each of the crimes has an element that the other one doesn't.

See this post for a quickie merger analysis that addresses those two factors and relevant case law.

Recently, in State v. Earls, the Court of Appeals agreed that multiple counts of negotiating a bad check merged with the aggregated thefts arising from those bad checks. It was an easy call for the court to make, since the Oregon AG's office conceded that merger was appropriate.

Because of the concession, the court didn't go into the facts or the analysis in any depth. But we can probably safely assume that the bad checks were uttered on different days, thereby making the situation a perfect factual analog to the use of the credit card in my hypothetical above.

The question is: do the counts merge because negotiating a bad check is from the same statutory provision as theft or do they merge because negotiating a back check is a lesser-included of theft. Both arguments were made by the appellate attorney?

I am inclined to believe that the court favored the former argument, despite the fact that negotiating a bad check is from a different chapter in the criminal code (165) than theft (164).

The opening brief first noted the following:

To determine whether the above statutes define one statutory provision or two depends on the legislature's intent. State v. White, 346 Or 275,283,211 P3d 248 (2009). "[W]e cannot focus solely on the fact that the legislature may have had separate reasons for enacting each section of a statute. Instead, we view the statute as a whole, looking to the text, context, and, when appropriate, legislative history of the statute. That analysis includes consideration of whether the sections, although addressing different concerns, also may address, on a more general level, one unified legislative objective:" Id. at 283-84.

The brief then described the legislative history of the crime of negotiating a bad check, which supported the idea that the legislature intended it to be from the same statutory provision of theft, despite very different locations in the criminal code.

Because of the reliance on legislative history, I cannot say whether the argument is as strong if you replace negotiating a bad check with fraudulent use of a credit card, but certainly there is no obvious logical reason to distinguish between the two.

The advantage to a client who might be charged with a dozen crimes but face far fewer convictions even after trial is significant.