From OCDLA Library of Defense
All of the bullet points below are discussed in greater detail in my a dozen posts , but I wanted to highlight five simple rules that every defense attorney should know.
- "Possession" is a continuing act, and therefore continuous possession, whether for 20 minutes or 20 months, constitutes a single criminal episode. This can be especially important in ID Theft charges, where the defendant possesses someone else's credit card continuously and uses it throughout the period of possession. Does the indictment allege possession for each count of ID Theft? If so, that might make it one continuous episode, which in turn could mean the difference between prison and probation.
- Simultaneous possession of different types of contraband constitutes a single criminal episode, whether the contraband includes guns, drugs, stolen property or child porn. This is separate from - and an exception to - the general rule that crimes are only part of the same criminal episode if they cross-relate.
- The number of victims has NO impact on whether there is more than one criminal episode. It never has. (But it does impact the 200% rule, the 400% rule and shift-to-I, which is probably where the confusion arises.)
- Convictions from the same criminal episode do not constitute predicates for a repeat property offender sentence under ORS 137.717. Nor does the defendant's criminal history score change. Therefore, if your client is convicted of 20 counts of ID Theft for simultaneous possession of 20 IDs, and he's not subject to ORS 137.717 for the first count, then he's not subject to ORS 137.717 for any of the counts. If your client assaults two people in a single fight, and he's an "I" on the grid for the first count, he's an "I" for the second count.
- Overlapping dates in the indictment means that a finding of separate criminal episodes is a jury question (absent a waiver of jury or an admission by the defendant). This can be particularly valuable if (1) the prosecutor never asks the jury for a finding of separate episodes, (2) the trial judge is foreclosed from making such a finding and (3) your client is only facing probation if there is no finding of separate criminal episodes (see (4) above).