State v. Heneghan

816 P.2d 1175, 108 Or. App. 637, 1991 Ore. App. LEXIS 1372

• Court: Court of Appeals of Oregon
• Decided: September 4, 1991
• Docket: 10 89 03024; CA A64171
• Status: Published

Opinions

PER CURIAM

Defendant petitions for review of our decision that affirmed, without opinion, his convictions for manufacture of a controlled substance, ORS 475.992(1), and possession of a controlled substance. ORS 475.992(4). 106 Or App 774, 810 P2d 882 (1991). We treat the petition as one for reconsideration, ORAP 9.15(1), allow it and adhere to our former decision.

Defendant argues that the trial court erred when it refused to enter only a single conviction and sentence, because both charges arose out of the same act or transaction. He contends:

“Defendant was alleged to have manufactured and possessed marijuana. Since marijuana is ‘all parts’ of a particular plant, and since manufacture is producing, preparing, propagating, compounding, converting or processing the plant, one must necessarily possess the plant or a part of the plant in order to manufacture.”

For purposes of merger under ORS 161.062(1) and ORS 161.067,¹ the elements of proof of a criminal offense are controlled by the statute defining the offense, not by the factual circumstances recited in the indictment. State v. Brown/Ford, 106 Or App 291, 807 P2d 316, rev den 311 Or 427 (1991); State v. Atkinson, 98 Or App 48, 50, 777 P2d 1010 (1989). Those cases are controlling.

Reconsideration allowed; decision adhered to.

1 ORS 161.067(1) was adopted as part of the “Crime Victim’s Bill of Rights” in 1986 and includes most of the same language as is in ORS 161.062(2). It provides:

“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.”