Criminal Episodes and Crime Sprees, part III (theft and ID theft)
In the last essay, I alluded to the fact that the phrase “criminal episode” is the same under a sentencing analysis as it is under a double jeopardy analysis. (See State v. Sparks, the case I cite below, if you have any residual doubt about this assertion.) The Boyd case I quoted – a double jeopardy case from the mid-70s – was recently quoted favorably in another double jeopardy case, State v Potter, 236 Or App 74, 234 P3d 1073 (2010). The Potter court noted that “criminal episode” under ORS 131.505(4) has long been held to mean the same thing as “same act or transaction.” The Potter court then quoted State v. Boyd for what constitutes the same criminal episode:
As the court explained in Boyd, as an initial guideline,
“if a complete account of one charge necessarily includes details of the other charge, the charges must be joined to avoid a later double jeopardy defense to further prosecution. We construe this test of interrelated events as necessitating joinder only where the facts of each charge can be explained adequately only by drawing upon the facts of the other charge. Stated differently, the charge[s] must be cross-related.”
Boyd, 271 Or at 566 (footnote omitted; emphasis both omitted and added).
Let’s start with a simple example of multiple charges that are cross-related. If a defendant steals his father’s credit card and he purchases $500 worth of items at Sears, the defendant might be charged with: identity theft, fraudulent use of a credit card and theft in the second degree. The facts of identity theft cannot be proven without “drawing upon the facts” of the fraudulent use of a credit card, and the same is true for the theft in the second degree (a misdemeanor). These are easily and obviously one criminal episode.
But let’s assume the defendant isn’t caught the first time, and he does the exact same thing with the exact same credit card one week later, this time at JC Penneys. The prosecutor would argue that these are two separate criminal episodes and depending on the circumstances, the defendant who was looking at probation the first time around might be looking at prison the second time around.
There is case law to support the prosecutor’s position, though there are some arguments to the contrary that I believe will ultimately prevail, that would support the idea that these two incidents, though a week apart, are one criminal episode. However, I want to assume the prosecutor is right to avoid complicating the next hypothetical.
Assume the same facts as above, except that the prosecutor has aggregated the two theft IIs into a single theft I. Aggregation is the vehicle by which the state can add together a number of smaller thefts to make, at a minimum, a felony theft. Since $1000 is the cut-off in Oregon for felony theft (when the theft is committed “by taking”), aggregating two $500 misdemeanor thefts equals one felony theft.
With this in mind, the indictment in this hypothetical alleges the following crimes, with the date of the crime in parentheses:
- Identity Theft (January 10)
- Fraudulent Use of a Credit Card (January 10)
- Identity Theft (January 17)
- Fraudulent Use of a Credit Card (January 17)
- Theft in the First Degree (on or between January 10 and January 17)
Some of you already see where I’m going with this. The state would argue that the January 10th and January 17th crimes are two separate criminal episodes. Consequently, the state might be able to get prison where otherwise the defendant would only get probation.
But the January 10th Identity Theft is cross-related with the Theft in the First Degree committed between January 10 and January 17. That is, one cannot prove the Theft in the First Degree without drawing upon the facts of the January 10th Identity Theft. So those two counts are cross-related.
But the state also can’t prove the Theft in the First Degree without drawing upon the facts of the January 17th Identity Theft. So those two counts are cross-related.
The next concept is borrowed from logic, but it holds equally well here, and it is known as the transitive principle.
- A = C, and
- B = C, therefore,
- A = B.
- ID Theft #1 is from the same criminal episode as the Theft.
- ID Theft #2 is from the same criminal episode as the Theft. Therefore,
- ID Theft #1 and ID Theft #2 are from the same criminal episode.
Thus, because of the prosecutor’s decision to aggregate the thefts into a felony theft, all counts – despite many occurring a week after others – become a single criminal episode. The defendant is once again looking at probation. Moreover, if the defendant uses that same credit card over a two month period, and the prosecutor aggregates all the thefts into a single count of Aggravated Theft (more than $10,000), once again, the principle would hold and it is one criminal episode. A previously crime-free defendant is facing probation for the first count and probation for each count thereafter.
The idea that crimes that occur on different dates might constitute one criminal episode is hardly unheard of in Oregon law. See State v. Cantrell, 223 Or App 9, 195 P3d 451 (2008) (firearm possessed on one day part of same criminal episode as events involving firearm two weeks later); State v. Lyons, 161 Or App 355 (1999)(recognizing that the crimes were not obviously part of a “single transaction,” the court nevertheless found earlier predicate acts to be part of the same criminal episode as subsequent racketeering charge); State v. Schwartz, 173 Or App 301, rev denied, 333 Or 162 (2001) (implicitly finding one criminal episode for computer crimes which were committed weeks apart, but refusing to merge counts because there was a sufficient pause between the two offenses to prohibit merger.)
The prosecutor may argue to the contrary, citing State v. Sparks, a case in which the defendant burglarized three different hotel rooms. In finding separate criminal episodes, the Sparks court held:
A complete account of any one of the unlawful entries could be proven without reference to the others. Consequently, in the light of the meaning of the words “criminal episode,” the rules relied on by defendant do not apply to his convictions.
State v. Sparks, 150 Or App 293, 297 (1997)
As I hinted at above, I think Sparks is an opinion that isn’t on the most solid ground analytically when compared to other opinions, but for the purposes of this essay, I want to assume it is good, solid law. It does not undermine my analysis above because there was no aggregated theft charge in Sparks. Using the language from Sparks but applying it to my hypothetical, the felony Theft in the First Degree CANNOT be “proven without reference” to the two ID Thefts and Fraudulent Use of a Credit Card.
Because the theft can’t be proven without reference to the other crimes, they are all one criminal episode.
The hypothetical I’ve described is quite common. It frequently comes up in embezzlement cases or criminal mistreatments (stealing from a dependent family member, for example), and these situations frequently involve defendants with no prior criminal history.
The significance of “one criminal episode” in this situation is huge. If you’ll recall from the first essay in this series, I gave an absurd hypothetical where a shoplifter received a sentence 20 times what the law allowed, because the defense attorney was unfamiliar with the law. I suggested that a 20-to-1 ratio was an exaggeration but the principle still held. In this situation, however, a 20-to-1 ratio wouldn’t be unusual, between what the prosecutor thinks the law allows and what the defendant in fact should receive.
This is because of the repeat property offender law, which requires prison sentences for repeat offenders. A subsection of that law, ORS 137.717(5), states:
(5)(a) For a crime committed on or after November 1, 1989, a conviction is considered to have occurred upon the pronouncement of sentence in open court. However, when sentences are imposed for two or more convictions arising out of the same conduct or criminal episode, none of the convictions is considered to have occurred prior to any of the other convictions arising out of the same conduct or criminal episode.
In other words, if all the crimes occur during a single criminal episode, the defendant with no prior criminal convictions is not a “repeat offender.” A defendant whose multiple thefts and identity thefts arise out of one criminal episode might remain presumptive probation, even if convicted of dozens of crimes. But if a finding of separate criminal episodes is made, that same defendant (now a repeat offender) could be looking at ten or twenty years in prison because of consecutive 13 month sentences for each ID theft and felony theft. Understanding the analysis above, even after interpreting the case law in the most prosecution-friendly way, can save your client years in prison.