In State v. Steltz, decided October 30th, 2013, the Oregon Court of Appeals reversed and remanded a portion of Mr. Steltz’s convictions with specific instructions to the lower court to resentence said convictions by merging four of them into only two.
The four charges in question were two counts of first-degree sodomy and two counts of second-degree sexual abuse.
During the closing arguments and sentencing, the state presented the two counts of first-degree sodomy and the two counts of second-degree sexual abuse as alternative theories of guilt for only two criminal acts.
The full case summary, which can be seen here, states that the legal question of whether convictions should merge is governed by the “anti-merger” rule in ORS 161.067(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.”
In this case, however, the state argued that the second-degree sexual abuse charges are lesser-included offenses of first-degree sodomy, causing the Court of Appeals to reverse and remand said charges for resentencing and merging of the four convictions into two.