State v. Setere

Under ORS 161.067(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.

Defendant appealed a conviction of 43 counts of second-degree animal neglect in violation of ORS 167.325, where each count involved a distinct – and separately named – animal. Defendant assigned error to the trial court’s decision to impose compensatory fines alongside punitive fines, and the decision to not merge the guilty verdicts into a single conviction. On appeal, Defendant argued that for felony second-degree animal neglect, all guilty verdicts had to merge into a single conviction. In response, the Court referenced its decision in State v. Hess, 273 Or App 26, 35 (2015) that ORS 161.067(2) provided as many separate punishable offenses as there are separate victims. ORS 161.067(2) states that, “[w]hen 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.” Because the jury found the Defendant guilty on each count of second-degree animal neglect based on the same statutory provision, the Court held that the guilty verdicts don’t merge into one count of conviction. Remanded for resentencing; otherwise affirmed.