VAN HOOMISSEN, J.
We allowed review in this case solely to interpret the first sentence of ORS 161.062(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.”
The issue here is whether separate first and third degree convictions and sentences may be imposed for a single act of rape or sodomy. On the present facts, we hold that separate convictions and sentences may be imposed.
I.
Defendant appealed convictions for third degree rape and third degree sodomy. ORS 163.305(1), 163.355, 163.385.
He contended that the trial court erred in not consolidating those convictions and sentences with his first degree rape and sodomy convictions and sentences arising out of the same sexual assault. ORS 163.375, 163.405.
The Court of Appeals
held that the convictions and sentences should not be consolidated.
State v. Crotsley,
94 Or App 347, 765 P2d 818 (1988). We affirm.
Defendant took a 14-year-old girl to his apartment, where he threatened her with a knife and forced her to engage in sexual intercourse and in several acts of deviate sexual intercourse. He was charged with first degree rape and three counts of first degree sodomy because he used forcible compulsion. He was also charged with third degree rape and three counts of third degree sodomy because his victim was under 16 years of age. One pair of first and third degree sodomy charges were later dismissed.
Defendant was tried by the court without a jury. The trial court convicted him of all six remaining charges and entered six separate convictions and imposed six separate sentences.
Defendant appealed, arguing that the three convictions related to the age of his victim, third degree rape and third degree sodomy, were included in corresponding first degree crimes and that, therefore, the trial court should have consolidated the third degree convictions into their first degree counterparts. The Court of Appeals affirmed, holding that the trial court did not err in applying ORS 161.062 to the facts of the case.
II.
Defendant argues that the first and third degree rape and sodomy charges are merely alternate charges for the same criminal acts, i.e., that he is subject to conviction and sentence on the first degree charges only if the state proved forcible compulsion and to conviction on the third degree charges if the state did not prove forcible compulsion. He also argues that the legislature intended that convictions and sentences
for lower degrees of rape and sodomy would be included within convictions and sentences for first degree rape and sodomy. The state argues that ORS 161.062 unambiguously authorizes the separate convictions and sentences imposed here. We agree with the state.
Prior to enactment of ORS 161.062, and in the absence of clear statutory guidance, the courts fashioned judicial rules to address circumstances in which a single criminal episode provides grounds for multiple convictions and sentences. These include situations where a single criminal episode involves violation of more than one statute; where a single criminal episode involves multiple crimes against the same victim; and where a single criminal episode involves multiple victims. Where no clear legislative intent could be discerned concerning multiple convictions and sentencing for crimes committed during a single criminal episode, this court had to speculate whether the legislature would have expected an offender to be sentenced for more than the most serious felony.
See State v. Cloutier,
286 Or 579, 596 P2d 1278 (1979).
After several attempts to enact legislation that would address judicial concerns about the lack of statutory guidance in this complex area, in 1985 the legislature enacted ORS 161.062, the first sentence of which is at issue here.
The proponents of ORS 161.062 clearly intended that criminal records accurately reflect all crimes actually committed and
that a person who commits multiple crimes by the same conduct or during the same criminal episode should have a criminal record reflecting each crime committed rather than only a single conviction which would not accurately portray the nature and extent of that person’s conduct.
The legislative history and text of ORS 161.062 could not be more clear in rejecting earlier case law requiring consolidation of multiple convictions and sentences arising from the same criminal episode.
For that reason, defendant’s reliance
on cases decided prior to the enactment of ORS 161.062 in 1985 is misplaced. In those cases, absence of clear statutory guidance required us to fashion rules that were more properly the subject of legislation, and statutory ambiguities were construed in favor of criminal defendants. The legislature has now unambiguously embraced the policy advocated by the proponents of ORS 161.062. Therefore, to the extent that our case law is inconsistent with ORS 161.062, that statute controls and earlier case law is superseded.
III.
In order for ORS 161.062
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VAN HOOMISSEN, J.
We allowed review in this case solely to interpret the first sentence of ORS 161.062(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.”
The issue here is whether separate first and third degree convictions and sentences may be imposed for a single act of rape or sodomy. On the present facts, we hold that separate convictions and sentences may be imposed.
I.
Defendant appealed convictions for third degree rape and third degree sodomy. ORS 163.305(1), 163.355, 163.385.
He contended that the trial court erred in not consolidating those convictions and sentences with his first degree rape and sodomy convictions and sentences arising out of the same sexual assault. ORS 163.375, 163.405.
The Court of Appeals
held that the convictions and sentences should not be consolidated.
State v. Crotsley,
94 Or App 347, 765 P2d 818 (1988). We affirm.
Defendant took a 14-year-old girl to his apartment, where he threatened her with a knife and forced her to engage in sexual intercourse and in several acts of deviate sexual intercourse. He was charged with first degree rape and three counts of first degree sodomy because he used forcible compulsion. He was also charged with third degree rape and three counts of third degree sodomy because his victim was under 16 years of age. One pair of first and third degree sodomy charges were later dismissed.
Defendant was tried by the court without a jury. The trial court convicted him of all six remaining charges and entered six separate convictions and imposed six separate sentences.
Defendant appealed, arguing that the three convictions related to the age of his victim, third degree rape and third degree sodomy, were included in corresponding first degree crimes and that, therefore, the trial court should have consolidated the third degree convictions into their first degree counterparts. The Court of Appeals affirmed, holding that the trial court did not err in applying ORS 161.062 to the facts of the case.
II.
Defendant argues that the first and third degree rape and sodomy charges are merely alternate charges for the same criminal acts, i.e., that he is subject to conviction and sentence on the first degree charges only if the state proved forcible compulsion and to conviction on the third degree charges if the state did not prove forcible compulsion. He also argues that the legislature intended that convictions and sentences
for lower degrees of rape and sodomy would be included within convictions and sentences for first degree rape and sodomy. The state argues that ORS 161.062 unambiguously authorizes the separate convictions and sentences imposed here. We agree with the state.
Prior to enactment of ORS 161.062, and in the absence of clear statutory guidance, the courts fashioned judicial rules to address circumstances in which a single criminal episode provides grounds for multiple convictions and sentences. These include situations where a single criminal episode involves violation of more than one statute; where a single criminal episode involves multiple crimes against the same victim; and where a single criminal episode involves multiple victims. Where no clear legislative intent could be discerned concerning multiple convictions and sentencing for crimes committed during a single criminal episode, this court had to speculate whether the legislature would have expected an offender to be sentenced for more than the most serious felony.
See State v. Cloutier,
286 Or 579, 596 P2d 1278 (1979).
After several attempts to enact legislation that would address judicial concerns about the lack of statutory guidance in this complex area, in 1985 the legislature enacted ORS 161.062, the first sentence of which is at issue here.
The proponents of ORS 161.062 clearly intended that criminal records accurately reflect all crimes actually committed and
that a person who commits multiple crimes by the same conduct or during the same criminal episode should have a criminal record reflecting each crime committed rather than only a single conviction which would not accurately portray the nature and extent of that person’s conduct.
The legislative history and text of ORS 161.062 could not be more clear in rejecting earlier case law requiring consolidation of multiple convictions and sentences arising from the same criminal episode.
For that reason, defendant’s reliance
on cases decided prior to the enactment of ORS 161.062 in 1985 is misplaced. In those cases, absence of clear statutory guidance required us to fashion rules that were more properly the subject of legislation, and statutory ambiguities were construed in favor of criminal defendants. The legislature has now unambiguously embraced the policy advocated by the proponents of ORS 161.062. Therefore, to the extent that our case law is inconsistent with ORS 161.062, that statute controls and earlier case law is superseded.
III.
In order for ORS 161.062(1) to be applicable to a defendant’s conduct, the following questions must be answered in the affirmative: (1) Did defendant engage in acts that are “the same conduct or criminal episode,” (2) did defendant’s acts violate two or more “statutory provisions,” and (3) does each statutory “provision” require “proof of an element that the others do not.” In this case, the answer to each question is “yes.”
First, defendant plainly engaged in a single criminal episode. That is not disputed.
Second, consistent with the legislative intent to convict and sentence defendants on the range of multiple crimes committed, we interpret the term “two or more statutory provisions” to include prohibitions such as those in this case that address separate and distinct legislative concerns.
ORS 163.375 provides three alternative combinations of elements that will constitute first degree rape. Each involves sexual intercourse and at least one element not involved in the others. ORS 163.375(l)(a) requires forcible
compulsion; ORS 163.375(1)(b) requires that the victim be under 12 years of age; and ORS 163.375(l)(c) requires that the victim be a close family member and under 16. Our discussion of the statutory scheme for rape applies equally to the statutory scheme for sodomy. The language of the rape and sodomy statutes and the Criminal Law Revision Commission’s commentary to those statutes establish that the statutory schemes for grading the various rape and sodomy offenses were intended to be identical.
ORS 163.375(l)(a), the only alternative requiring forcible compulsion, is a clear statutory prohibition against forcing sex on any female. All other variations of first degree rape (as well as all variations of second and third degree rape) are similar to each other in that they accord special protection to specified groups of females by making sexual intercourse with one of them a crime even with “consent.” ORS 163.375(l)(b) is a prohibition against sexual intercourse with females under 12; ORS 163.375(1)(c) is a prohibition against sexual intercourse with close female relatives under 16. Thus, each statutory alternative addresses a separate and distinct legislative concern, and each alternative is a separate statutory “provision” for purposes of ORS 161.062(1). Because they are separate provisions, defendant’s argument that ORS 163.355 is a lesser included offense to first degree rape fails. ORS 163.355, prohibiting sexual intercourse with a female under 16 years of age, reflects the same kind of legislative concern as ORS 163.375(1)(b), an offense not charged here; it reflects a separate and distinct legislative concern from ORS 163.375(l)(a), the first degree rape alternative with which defendant is charged.
Defendant points to the Criminal Law Revision Commission’s commentary to the rape and sodomy statutes to the effect that the Commission intended to group these offenses into three degrees of severity. However, we do not find from the commentary that, by grading these offenses into first, second, and third degrees, the legislature intended to obviate the other differences of the offenses for purposes of multiple convictions and sentences.
With respect to the third statutory question, each statutory offense requires proof of a separate element. Each of the third degree crimes requires a finding that the victim is
under 16 years of age, an element not necessary to prove the corresponding first degree crimes. The state must separately charge ORS 163.355 and prove a victim’s age for a conviction under that statute. For this reason, ORS 163.355 is not a lesser included offense of ORS 163.375(l)(a), which has no age element. Each is a separate offense (or “statutory provision”) for purposes of ORS 161.062(1). Accordingly, ORS 161.062 expressly authorizes the separate first and third degree convictions involved here. The same analysis applies to the sodomy convictions involved here: ORS 163.385 is not a lesser included offense of ORS 163.405(l)(a).
In raping a 14-year-old girl, defendant violated two different prohibitions that the legislature has codified as separate criminal offenses. He forced his victim to engage in sex against her will, and he chose a victim to whom the legislature had accorded additional protection because of her age. Defendant argues, in effect, that his criminal record should be no different than if his victim had not been a child, that his “incidental” violation of additional laws should not subject him to additional sanction. The legislature has rejected that argument in clear and unambiguous language.
The decision of the Court of Appeals is affirmed. The judgment of the trial court is affirmed.