S055672, Opinion — State v. White

275
Argued and submitted November 12, 2008, decision of Court of Appeals affirmed
in part and reversed in part; judgment of circuit court reversed, and case
remanded to circuit court for further proceedings June 18, 2009
STATE OF OREGON,
Respondent on Review,
v.
RICKY LASHAWN WHITE,
aka Ricky Leshawn Booker,
aka Ricky Leshawn White,
aka Jermaine Marcell,
Petitioner on Review.
(CC 041136028; CA A128491; SC S055672)
211P3d248

276 	State v. White
CJS, Criminal Law§ 14.
En Banc
On review from the Court of Appeals.*
Robin A. Jones, Senior Deputy Public Defender, Salem,
argued the cause and filed the brief for petitioner on review.
With her on the brief was Peter Gartlan, Chief Defender,
Office of Public Defense Services.
Janet A. Metcalf, Assistant Attorney General, argued the
cause and filed the brief for respondent on review. With her
on the brief were Hardy Myers, Attorney General, and Mary
H. Williams, Solicitor General.
BALMER,J.
The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for fur-
ther proceedings.
Kistler, J., 	concurred 	and filed 	an opinion in which
Walters and Linder, JJ.,joined.
* Appeal from Multnomah County Circuit Court, Christopher J. Marshall,
Judge. 217 Or App 214, 175 P3d 504 (2007).

Cite as 346 Or 275 (2009) 	277
BALMER,J.
The issue in this criminal case is whether, under
ORS 161.067(1), the trial court should have merged defen-
dant's guilty verdicts for two counts of second-degree robbery
that arose out of the same criminal episode. One count was
based on ORS 164.405(1)(a) (robbery while purporting to be
armed with a dangerous weapon), and the other was based on
ORS 164.405(1)(b) (robbery when aided by the actual pres-
ence of another person). The Court of Appeals affirmed the
trial court's decision not to merge the guilty verdicts on the
two counts. State v. White, 217 Or App 214, 175 P3d 504
(2007). We allowed defendant's petition for review and now
reverse and remand for further proceedings.
We take the relevant facts from the Court of Appeals
opinion:
"Fender, a loss prevention employee at the Hollywood West
Fred Meyer in Portland, saw Sims, who was with defen-
dant, select a watch from a display and remove its packag-
ing. Neither Sims nor defendant paid for the watch. After
requesting back-up from other loss prevention employees,
Fender followed Sims and defendant as they left the store
with the watch. Fender approached Sims, who had the
watch in his hand, and inquired about the unpaid merchan-
dise. Sims told Fender that he would stab him ifhe touched
him. Boyce, another loss prevention employee, approached
defendant and told him that the store does not apprehend
shoplifting accomplices and that he should leave. Defen-
dant did not leave the scene. Around that time, several
other loss prevention employees also approached Sims and
defendant. Sims continued to threaten the group with the
use of a weapon, although neither Sims nor defendant ever
produced a weapon. Fender called 9-1-1.
"The group of employees followed Sims and defendant
into the parking lot. Boyce followed defendant as he moved
slightly away from the group and placed his sweatshirt on
top of a parked car. When Boyce took defendant's sweat-
shirt off of the car, defendant took the sweatshirt back and
told Boyce not to touch it. While Boyce and defendant were
among the parked cars, defendant told Boyce that he would
stab Boyce if he touched him.

278 	State v. White
"The car on which defendant had placed his sweatshirt
pulled up next to Sims, and Sims, who was still holding the
watch, got into the car. The car drove away, leaving defen-
dant behind. The employees continued to follow defendant
to the edge of the parking lot. As defendant left the parking
lot, Officer Helzer, who was responding to Fender's 9-1-1
call, arrested defendant for robbery. Helzer conducted a
search of defendant incident to that arrest and found no
weapon.
"After a jury trial, defendant was convicted of two
counts of second-degree robbery, both on the basis of his
conduct toward Boyce. One count charged defendant with
violating ORS 164.405(1)(a), which elevates third-degree
robbery to second-degree robbery ifthe person '[r]epresents
by word or conduct that the person is armed with what pur-
ports to be a dangerous or deadly weapon.' The other count
charged defendant with violating ORS 164.405(1)(b), which
elevates third-degree robbery to second-degree robbery if
the person '[i]s aided by another person actually present.'
"At sentencing, defendant argued that those convictions
should merge because they were based on the same crimi-
nal episode with respect to a single victim. The prosecutor
responded that the two convictions should not merge
because each was based on a paragraph of the statute that
requires proof of an element that the other paragraph does
not. The sentencing court entered separate convictions."
State v. White, 217 Or App at 216-17.
On appeal, defendant assigned as error the trial
court's failure to merge the robbery counts.1 The Court of
Appeals affirmed, concluding that the two statutory provi-
sions that defendant had violated-robbery purporting to be
armed and robbery aided by the presence of another person-
addressed "separate and distinct legislative concerns" and
therefore constituted "separately punishable offenses" under
Oregon's anti-merger statute, ORS 161.067(1). 2 White, 217
Or App at 224-25.
1 Defendant also assigned error to the trial court's use of defendant's juvenile
record in determining his sentence. We decline to address that issue. See ORAP
9.20(2) (court need not address all questions presented for review).
2 Although the anti-merger statute mandates that certain offenses are "sepa-
rately punishable," the issue whether the defendant receives consecutive or con-
current sentences is resolved under a different statute, ORS 137.123. The only
issue presented in this case is whether the trial court should have merged the

Cite as 346 Or 275 (2009) 	279
ORS 	161.067(1}--the "anti-merger" statute-pro-
vides, in part:
"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."
ORS 161.067(1). 3 A court will apply that statute and find sep-
arately punishable offenses if (1) the defendant engaged in
acts that constituted "the same conduct or criminal episode";
(2) the defendant's acts violated "two or more statutory pro-
visions"; and (3) each statutory provision requires "proof of an
element that the others do not." State v. Crotsley, 308 Or 272,
278, 779 P2d 600 (1989) (internal quotation marks omitted).
The parties do not dispute that defendant engaged in a single
criminal episode or that ORS 164.405(1)(a) and (b) contain
different elements. The remaining issue, which the parties do
dispute, is whether defendant's acts violated "two or more
statutory provisions." ORS 161.067(1). Defendant argues
that second-degree robbery is a single statutory provision
and, therefore, his guilty verdicts under ORS 164.405(1)(a)
and (b) merge. The state responds that the Court of Appeals
correctly 	decided 	that 	paragraphs 	(a) 	and 	(b) 	of ORS
164.405(1) are separate "statutory provisions" and that the
guilty verdicts do not merge. 4
jury's guilty verdicts on the two different robbery counts; defendant does not chal-
lenge his sentence.
3 The anti-merger statute has other subsections that set out when separately
punishable offenses will be found based on criminal conduct that involves more
than one victim, ORS 161.067(2), and when the conduct "violates only one statu-
tory provision and involves only one victim," but nevertheless involves "repeated
violations" of the same provision involving the same victim. ORS 161.067(3). Nei-
ther party suggests that those provisions of the anti-merger statute apply here.
4 The parties and the courts below often refer to the issue in this case as being
whether defendant's "convictions" merge. However, neither ORS 161.067 nor the
statutes respecting the procedures for entry of judgment in a criminal case use the
term "conviction" to describe any event or status prior t-0 the trial court's entry of
judgment following trial and sentencing. See ORS 137.071(2)(g) ("judgment" shall
include determination of each charge, which may include "determination * * * of
conviction"). Rather, the jury (or, in a bench trial, the court) finds a defendant
"guilty" or "not guilty" on each offense charged in the accusatory instrument, see
ORS 136.455 (so providing), and the defendant is not formally "convicted" on any
charge until the trial court enters a judgment. Thus, a trial court applies the
merger statute to guilty verdicts on particular counts, rather than to "convictions."

280 	State v. White
As an initial matter, we note that determining
whether a defendant violated one statutory provision or two
statutory provisions does not depend entirely on the struc-
tural form that the criminal statute takes. "Statutory provi-
sion" is not defined as "a section, subsection, or paragraph"; it
instead means "any provision defining a 'single crime,' what-
ever visual form the provision is given." State u. Kizer, 308 Or
238, 243, 779 P2d 604 (1989). Thus, to determine whether an
action violates two statutory provisions, we must determine
whether the legislature intended to create two crimes or only
one. Of course, one indicator oflegislative intent is the visual
form that the statute takes. See State u. Barrett, 331Or27,
35, 10 P3d 901 (2000) ("[T]he use of a single section * * * is
some indication that the legislature intended to define a
single crime."). But, because that factor is not dispositive, we
also consider other aspects of the text and context of the stat-
ute to help determine whether it creates two crimes or only
one.
In State v. White, 341Or624, 14 7 P3d 313 (2006), for
example, this court examined the first-degree burglary stat-
ute, ORS 164.225, 5 and determined, based on the text of the
statute, that the legislature had intended to create only one
crime. After an incident in which the defendant had entered
his former girlfriend's apartment and assaulted her, the
defendant was convicted of two counts of first-degree bur-
glary for (1) entering and remaining in a building with the
intent to commit assault; and (2) entering and remaining in a
building with the intent to commit menacing. White, 341 Or
at 627. Looking at the "clear words of the statute," the court
noted that the burglary statutes require "intent to commit a
crime"-that is "any crime"; it is irrelevant what crime the
defendant intends to commit. Id. at 640. For that reason, the
court determined that the text of the statute did not "suggest
a legislative intent to treat a single unlawful entry or remain-
der as violating more than one 'statutory provision' based on
the burglar's intent to commit more than one crime inside the
building." Id.
" The relevant statutory wording comes from ORS 164.215 and is incorporated
by reference into ORS 164.225: "[A) person commits the crime of burglary*** if
the person enters or remains unlawfully in a building with intent to commit a
crime therein."

Cite as 346 Or 275 (2009) 	281
Similarly, in Barrett, i331Or27, this court looked at
the aggravated murder statute in considering whether a sen-
tencing court could impose multiple life sentences on a defen-
dant for three counts of aggravated murder under ORS
163.095, 6 each of which was based on a different aggravating
circumstance. After examining the text and context of the
statute, 	the 	court 	determined 	that 	the 	legislature 	had
intended to set out the various theories that could be used to
prove a single element, namely "aggravation," of a single
crime, aggravated murder. As to the text of the statute, ORS
163.095 defined aggravated murder as murder accompanied
by "any" of the listed aggravating circumstances. Because
"any" means "one or more," the court determined that the
wording of the first sentence of ORS 163.095 "suggest[ed]
that any or all the enumerated circumstances simply serve to
prove the single essential element of 'aggravation.'" Barrett,
331 Or at 35. For context, the court then looked to the stat-
utes defining the penalties for murder and aggravated mur-
der. If a murder is committed with one of the 18 aggravating
circumstances described in ORS 163.095, then the penalty is
greater than that for "simple murder." That sentencing
scheme "suggest[ed] a single legislative intent to punish
more severely certain murders that the legislature deems to
be particularly heinous.'' Id. at 35-36. Because the court
determined that the legislature had intended to create a
single crime when it enacted the aggravated murder statute,
the court concluded that the defendant's guilty verdicts
should have merged.
Some of this court's prior cases have examined the
legislative history of the substantive criminal statutes at
issue in those cases for assistance in determining whether
the legislature intended to create a single crime or multiple
crimes. In Kizer, 308 Or 238, for example, the legislative his-
tory indicated that the legislature had intended to create only
one crime, despite the fact that it had divided the statute into
6 Under ORS 163.095, aggravated murder is "murder as defined in ORS
163.115 which is committed under, or accompanied by, any of' 18 different aggra-
vating circumstances. The defendant in Barrett was charged with three counts of
aggravated murder: Count 1, for intentionally killing the victim during the com-
mission of a robbery; Count 2, for intentionally killing the victim during the com-
mission of a kidnapping; and Count 3, for killing the victim to conceal the defen-
dant's identity. State v. Barrett, 331 Or 27, 29, 10 P3d 901 (2000).

282 	State v. White
two sections. In Kizer, the issue was whether, under ORS
165.007(1), uttering a forged document and falsely making a
written instrument should be treated as two crimes or as only
a 	single 	instance 	of forgery. 7 	The 	court looked to 	the
Commentary to ORS 165.007, which stated that the legisla-
ture had intended forgery to be "a single crime that may be
committed by falsely making, completing, or altering a writ-
ten instrument or by uttering a forged instrument with
knowledge of its forged character." Kizer, 308 Or at 242
(internal quotation marks omitted). Because the legislative
history demonstrated that the legislature had intended to
create only a single crime, the court concluded that "the
terms 'falsely makes, completes or alters a written instru-
ment or utters a written instrument which the person knows
to be forged' constituted a single 'provision'*** only made
easier to read by inserting the letters (a) and (b)." Id. at 243.
Despite the foregoing case law, there has been some
confusion as to the proper analysis for determining whether
guilty verdicts merge under ORS 161.067(1), in part attrib-
utable to statements in this court's opinion in Crotsley, 308
Or 272. In Crotsley, the issue was whether a defendant could
be convicted and punished separately for first- and third-
degree rape 8 based on the same criminal conduct. The defen-
dant had forced the 14-year-old victim in that case to engage
in sexual acts by threatening her with a knife, thus violating
both the third-degree rape statute, which prohibited sexual
7 ORS 165.007(1) provides:
"A person commits the crime of forgery in the second degree if, with intent
to injure or defraud, the person:
"(a) Falsely makes, completes or alters a written instrument; or
"(b) Utters a written instrument which the person knows to be forged."
To "falsely make" a written instrument means "to make or draw a complete written
instrument in its entirety * * * which purports to be an authentic creation of its
ostensible maker, but which is not * * *because* * *the ostensible maker did not
authorize the making or drawing thereof." ORS 165.002(4). To "utter" a written
instrument means "to issue, deliver, publish, circulate, disseminate, transfer or
tender a written instrument* * *to another." ORS 165.002(7).
8 The defendant also was convicted of first- and third-degree sodomy, but
because the wording and legislative history of the rape and sodomy statutes dem-
onstrated that "the statutory schemes for grading the various rape and sodomy
offenses were intended to be identical," the court applied the same analysis to the
rape and sodomy statutes. State u. Crotsley, 308 Or 272, 279, 779 P2d 600 (1989).

Cite as 346 Or 275 (2009) 	283
intercourse 	with 	a 	female 	under 	the 	age 	of 16, 	ORS
163.355(1), and the first-degree rape statute, which pro-
hibited 	sexual 	intercourse 	by forcible 	compulsion. 	ORS
163.375(1)(a). In explaining its analysis, the court focused on
whether the two statutes addressed "separate and distinct
legislative concerns." Crotsley, 308 Or at 278. The court noted
that the latter provision, which required forcible compulsion,
was "a clear statutory prohibition against forcing sex on any
female." Id. at 279. In contrast, "[a]ll 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 spe-
cial protection to specified groups of females by making sex-
ual intercourse with one of them a crime even with 'consent.'"
Id. Because the two provisions addressed "separate and dis-
tinct legislative concerns"-preventing forcible rape and pre-
venting sexual intercourse with certain classes of victims-
the court determined that the defendant had violated two
statutory "provisions."
Based on those statements in Crotsley, the state
argues that, whenever a statute addresses two distinct legis-
lative concerns, then the legislature has created two "provi-
sions" for purposes of ORS 161.067(1). That interpretation is
incorrect for two reasons. First, as discussed above and as
articulated by this court in White and Barrett, the appropri-
ate inquiry is whether the legislature intended to create a
single crime or two crimes; the fact that a statute addresses
two legislative concerns may be a useful guide when analyz-
ing the legislature's intent, but it is not dispositive. Second,
every statutory section that "requires proof of an element
that the others do not," ORS 161.067(1), necessarily involves
a distinct legislative concern--otherwise there would be no
need for the additional element. And, we know from Crotsley,
308 Or at 278, and Barrett, 331 Or at 32, that whether an
additional element must be proved and whether there are
"two or more statutory provisions" are separate inquiries
under ORS 161.067(1). As a result, we cannot focus solely on
the fact that the legislature may have had separate reasons
for enacting each section of a statute. Instead, we view the
statute as a whole, looking to the text, context, and, when
appropriate, legislative history of the statute. That analysis

284 	State v. White
includes consideration of whether the sections, although
addressing different concerns, also may address, on a more
general level, one unified legislative objective.
Having identified the appropriate analysis, we turn
to the robbery statutes at issue here to determine whether
the legislature intended to define a single crime of second-
degree robbery or two separate crimes. ORS 164.405(1) con-
tains two paragraphs defining the crime of second-degree
robbery-a robbery in which the robber represents that he or
she is armed (paragraph (a)) and a robbery in which the rob-
ber is aided by another person who is actually present (para-
graph (b)). 9 Defendant argues that those two paragraphs are
simply alternative ways of proving a single crime and that
his guilty verdicts under the two counts therefore should be
merged into a single conviction for second-degree robbery.
The state counters that, under ORS 161.067(1), the issue is
whether ORS 164.405(1)(a) and ORS 164.405(1)(b) reflect the
intent of the legislature to establish two "separately punish-
able offenses" and that, as Crotsley states, that inquiry
focuses on whether the text and the legislative history of that
statute demonstrate that the paragraphs "address separate
and 	distinct 	legislative 	concerns." 	Moreover, 	the 	state
argues, even if the focus is on the text and context of the rob-
bery statutes, the legislature's intent is clear that the two dif-
ferent ways of committing second-degree robbery are "sepa-
rate provisions" and "separately punishable offenses." The
state points out that those provisions are set out in separate
paragraphs of the second-degree robbery statute and that,
under ORS 161.067(1), "each provision requires proof of an
element that the other[] do[ es] not."
The state's argument, relying on the legislature's
use of two separate paragraphs and the fact that each para-
graph requires proof of different elements, however, ignores
9 ORS 164.405 provides:
"( 1) A person commits the crime of robbery in the second degree if the per-
son [commits third-degree robbery] and the person:
"(a) Represents by word or conduct that the person is armed with what
purports to be a dangerous or deadly weapon; or
"(b) Is aided by another person actually present.
"(2) Robbery in the second degree is a Class B felony."

Cite as 346 Or 275 (2009) 	285
this court's focus, in applying the anti-merger statute, on a
separate and more fundamental inquiry: Whether the text,
context, and legislative history of the second-degree robbery
statute demonstrate that "the legislature intended to define a
single or two separate crimes," White, 341 Or at 638-39, when
it enacted that statute. See Kizer, 308 Or at 242-43 (using leg-
islative history); White, 341 Or at 640 (using statutory text);
Barrett, 331 Or at 35-36 (using text and context of statute). 10
We begin with the text and context of the statute.
ORS 164.405 is one of three statutes that, together, make up
the statutory scheme respecting robbery. In those statutes,
the legislature has provided an incrementally graded set of
standards for determining the seriousness of different forms
of robbery and has 	divided those 	standards into three
groups-third-degree robbery, second-degree robbery, and
first-degree robbery. Third-degree robbery is the least seri-
ous and describes the basic crime of robbery: taking or
attempting to take property from another, while preventing
or overcoming the victim's resistance to giving up the prop-
erty by using or threatening to use physical force. ORS
164.395. 11 The crimes of second- and first-degree robbery
then use third-degree robbery as a foundation and build on
10 Even if we were to put to one side this court's decisions interpreting the anti-
merger statute, including Kizer, White, and Barrett, it is not at all clear that the
state's construction of that statute is supportable. Justice Kistler's concurring
opinion argues that the legislative history of ORS 161.067(1) demonstrates that the
phrase "statutory provision" in that statute refers to a separately defined statutory
crime or separate degree of crime-and not to alternative ways of committing that
crime. 346 Or at 296-98 (Kistler, J., concurring). Our holding today is based on ORS
161.067(1) as we have interpreted that statute in cases decided over the last
20 years, but there is no inconsistency between the results in those cases and the
concurring opinion.
11 ORS 164.395 provides:
"(1) A person commits the crime of robbery in the third degree if in the
course of committing or attempting to commit theft or unauthorized use of a
vehicle as defined in ORS 164.135 the person uses or threatens the immediate
use of physical force upon another person with the intent of:
"(a) Preventing or overcoming resistance to the taking of the property or
to retention thereof immediately after the taking; or
"(b) Compelling the owner of such property or another person to deliver
the property or to engage in other conduct which might aid in the commission
of the theft or unauthorized use of a vehicle.
"(2) Robbery in the third degree is a Class C felony."

286 	State v. White
its elements by identifying additional elements that, if pres-
ent, make the crime a more serious one. The highest level of
robbery, first-degree robbery, is a robbery in which the robber
is armed or actually causes or attempts to cause the victim
serious injury. ORS 164.415. 12 Second-degree robbery-the
crime that concerns us here-is the intermediate level ofrob-
bery. The legislature apparently determined that the addi-
tional circumstances of (1) the robber representing that he or
she is armed (even ifhe or she is not), and (2) the robber hav-
ing the potential assistance of another person, are similar in
seriousness to each other, and that both lie between the
greater seriousness of the robber being armed and the lesser
seriousness of unarmed threats by a single robber. The leg-
islature chose the same intermediate designation-second-
degree robbery, a Class B felony-to apply to a robbery that is
committed with either one of those enhancing elements. In
contrast, first-degree robbery is a Class A felony, and third-
degree robbery is a Class C felony. The legislature's creation
of the crime of second-degree robbery thus reflects concern
with the increased threat of violence from a 	purported
weapon (even if it is a threat that the robber cannot make
good on) and from the presence of an accomplice with the
robber.
By its terms, ORS 164.405 defines a single crime--
second-degree robbery. The only question is whether the fact
that there are two different circumstances that, individually,
can elevate third-degree robbery to second-degree robbery
means that the legislature intended there to be two sepa-
rately punishable offenses. That the two circumstances are in
the same statutory section might mean that-although they
involve proof of different facts-they are related in the same
way to first-degree and third-degree robbery, in that they
both lie between armed and unarmed threats of violence in
12 ORS 164.415 provides:
"( 1) A person commits the crime of robbery in the first degree if the person
[commits third-degree robbery) and the person:
"(a) Is armed with a deadly weapon;
"(b) Uses or attempts to use a dangerous weapon; or
"(c) Causes or attempts to cause serious physical injury to any person.
"(2) Robbery in the first degree is a Class A felony."

Cite as 346 Or 275 (2009) 	287
terms of seriousness. Or, because the legislature divided the
section into two paragraphs and each paragraph requires
proof of an element that the other does not, the legislature
may have intended to define two separate crimes. The defi-
nition of the crime here is susceptible of two plausible mean-
ings, and we turn to the legislative history for more specific
guidance. See State v. Gaines, 346 Or 160, 206 P3d 1042
(2009) (following that approach).
The robbery statutes at issue here are the product of
the comprehensive revision of the state criminal code in 1971.
The Commentary to the criminal code revision explains
that those statutes "provide[ ] * * * three ascending degrees
of 	robbery." 	Commentary 	to 	Criminal 	Law 	Revision
Commission Proposed Oregon Criminal Code, Final Draft
and Report § 150, 154 (July 1970). The text of ORS 164.395
"contains the basic statement of the crime," with the texts of
ORS 164.405 and ORS 164.415 "adding one or more of certain
aggravating factors to the crime." Commentary at 154. The
text of ORS 164.405 "raises the crime to robbery in the second
degree if the robber creates the impression that he is armed"
or if he is "aided by another person actually present." Id. at
155 (emphasis omitted).
"Subsection (l)(a) is intended to cover the type ofrobbery in
which the actor is, in fact, unarmed, but conveys to the vic-
tim the impression that he has a weapon. While such a
threat may not create any greater risk to the person of the
victim, it does heighten the terror in the victim's mind and
also, is persuasive in overcoming resistance to the robbery."
Id. As to the presence of an accomplice, "[t]he primary ration-
ale behind paragraph (b) of subsection (1) of[ ORS 164.405] is
the increased danger of an assault on the victim when the
robber is reinforced by another criminal who is actually pres-
ent." Id.
What the statutes and the legislative history indi-
cate is an incremental classification, not of levels of actual
violence during the commission of a robbery, but of levels of
the potential for violence, including its potential extent. Nei-
ther of the two factors identified in the second-degree robbery

288 	State v. White
statute-purporting to have a weapon and having an accom-
plice present-requires actual or attempted violence. Obvi-
ously, the absent weapon cannot be used against the victim,
and the other statutory element is met ifthe "accomplice is in
such proximity of the victim that he is in a position to assist in
exerting force upon the victim," id. (emphasis added), even if
no force is used. Rather, the Commentary focuses on the
degree of perceived or actual threat to the victim, which is
increased by the presence of either or both of those two fac-
tors, and which increases the likelihood that the victim will
comply with the robber's demands. Taken together, the three
robbery statutes indicate that the lowest level is the use or
threat of the use of unarmed physical force; at the highest
level is the more persuasive threat of an actual weapon, the
use or attempted use of a weapon, or the use or attempted use
of force to cause serious physical injury. In the middle, there
is the threat of a weapon that may, in fact, be an empty threat
or the heightened threat of unarmed physical force (but no
actual use of force) because of the presence of an additional
person.
The Court of Appeals focused on the differences
between the two elements discussed above:
"The 	official 	legislative 	commentary 	to 	the 	second-
degree robbery statute clearly demonstrates that ORS
164.405(1)(a) and (b) were enacted to address separate and
distinct legislative concerns. The commentary confirms
that paragraph (l)(a) was enacted to address only the risk
of psychological harm to victims who have the subjective
belief that they are confronted with an armed robber. By
comparison, paragraph (l)(b) was enacted to address con-
cerns about the physical safety of a victim when more than
one robber is present."
217 Or App at 224-25 (citation omitted). The Court of Appeals
thus juxtaposed "psychological harm to victims" with "con-
cerns about the physical safety of a victim" and reasoned that
those considerations differ. The Court of Appeals, of course,
was correct in noting the "separate and distinct legislative
concerns," id. at 223-25, and, ifthat were the only considera-
tion in applying the anti-merger statute, then there might
not be merger here.

Cite as 346 Or 275 	289
However, as discussed above, and notwithstanding
our reference to that factor in Crotsley, the more central ques-
tion under ORS 161.067(1) is not whether ORS 164.405(1)(a)
and (b) address separate legislative concerns, but whether
the legislature intended those two paragraphs to define a
single crime of second-degree robbery or two separate crimes.
White, 341 Or at 638-39. Examined in that light, it appears
that the Court of Appeals' analysis focused too narrowly on
the Commentary's distinctions between the two ways in
which a third-degree robbery could be elevated to second-
degree robbery. The Commentary, of course, was intended to
explain the origins of the various provisions of the revised
criminal code, the elements of each crime, and the distinc-
tions between different crimes. In this case, the Commentary
usefully describes the legislative intent behind the two differ-
ent "aggravating factors" in ORS 164.405(1). However, the
Commentary sheds no particular light on whether the legis-
lature intended that statute "to define a single crime or two
separate crimes." In our view, the comparison of the psycho-
logical harm to victims that is the apparent focus of para-
graph (l)(a) and the threat to physical safety reflected in par-
agraph (l)(b) misses the more general thrust of the statutory
scheme. 13
The crime of robbery is not only, or even primarily,
about punishing a defendant for inflicting violence or psycho-
logical injury on the victim. The three robbery statutes
reflect, as their common concern, the threat or likelihood of
The Court of Appeals correctly perceived the issue that we address here, not-
ing that one could "identify the legislative concern addressed by the second-degree
robbery statute" in a "general way-that is, as overcoming the resistance of the vic-
tim." State v. White, 217 Or App 214, 225, 175 P3d 504 (2007). The court rejected
that way of identifying the legislature's intent, reasoning that "it would eliminate
any distinction between the varying degrees ofrobbery," id., and the court pointed
out that the use or threat of force to overcome the victim's resistance is what distin-
guishes the crime of robbery from the crime of theft. Id. That analysis, however,
gives insufficient weight to the fact that the legislature did, in fact, distinguish
between the different degrees of robbery, creating an ascending scale of different
degrees of one crime, each of which it classified as a different level of felony and
enacted as a different statute. Identifying a common legislative concern in the two
means of proving second-degree robbery-which is similar to the concerns under-
lying all the robbery statutes, but greater in magnitude than third-degree robbery
and less than first-degree robbery-does not eliminate the statutory distinctions,
but, rather, gives effect to the legislature's statutory structure.

290 	State v. White
violence to the victim, but the threat of violence (or actual vio-
lence) is part of the crime of robbery only when it is used "in
the course of committing or attempting to commit theft or
unauthorized use of a vehicle." ORS 164.395(1). Actual or
threatened violence, of course, is punishable under other
statutes, but, in the context ofrobbery, it is a secondary con-
sideration to the coercive effect of potential violence in the
course of theft. Robbery is the taking of property using
threats of violence or otherwise creating a sense of fear in the
victim, thus forcing the victim to hand over property. It is the
concept of fear or threat of violence that separates robbery
from mere theft. See Black's Law Dictionary 924 (6th ed
1991) (robbery defined as "[f1elonious taking of money* * * in
the possession of another * * * and against his will, accom-
plished by 	means 	of force 	or 	fear" 	(emphasis 	added));
4 William Blackstone, Commentaries on the Laws ofEngland
241 (1769) ("Open and violent larciny [sic] from the person, or
robbery, * * * is the felonious and forcible taking, from the
person of another, of goods or money to any value, by putting
him in fear." (Original emphasis omitted; emphasis added.)).
The use or threat of violence is what causes the victim to part
with property, and that coercive effect is what each of the rob-
bery statutes addresses.
As the three robbery statutes indicate, the nature
of the threat of violence-whether actual or perceived-
aggravates the crime ofrobbery and raises the crime from the
third degree to the second or first degree. If the robber is
alone or one of many, unarmed or armed with a deadly or
dangerous weapon, the effect of the specific circumstance
results in different levels of threat that may persuade the vic-
tim to part with his or her property with more or less reluc-
tance. The legislature determined that the threat of violence
when a robber purports to have a weapon or when he or she
has an accomplice lies somewhere between the threat of vio-
lence involved in a confrontation with a lone unarmed robber
who threatens but does not use violence and a confrontation
with an indisputably armed robber or one who actually uses
or attempts to use violence to cause serious injury. In that
sense, the three robbery statutes reflect the legislature's
judgment regarding the aggravating elements that elevate
third-degree robbery to second- or first-degree robbery. See

Cite 	291
Barrett, 331 Or at 36 (aggravating circumstances relating to
murder). Paragraphs (a) and (b) of ORS 164.405(1) both
address the same coercive effect on the victim of the threat of
violence, even though they do so in different ways. The legis-
lature determined that either a purported weapon or the
presence of an accomplice, or both, would elevate the crime of
third-degree robbery to the crime of second-degree robbery.
In our view, the legislature created a single crime of second-
degree robbery. 14 The fact that the alternative circumstances
that elevate third-degree robbery to second-degree robbery
appear in two different paragraphs in ORS 164.405(1) does
not make them (or the crime of second-degree robbery) "two
* * *statutory provisions." Accordingly, ORS 161.067(1) does
not apply here, and the trial court erred in failing to merge
defendant's guilty verdicts on the two counts of second-
degree robbery.
The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court is
reversed, and the case is remanded to the circuit court for fur-
ther proceedings.
KISTLER, J., concurring.
Defendant took a watch from Fred Meyer. In the
course of doing so, he threatened to stab a store employee
with a knife and was assisted by another person who was
present. That conduct, the jury found, violated two alterna-
tive means of committing second-degree robbery, and the
question in this case is whether defendant may be punished
for only one offense or two. The answer to that question
turns, as the majority recognizes, on whether each alterna-
tive means of committing second-degree robbery is a separate
"statutory provision" for the purposes of ORS 161.067(1),
which defines when the same conduct or criminal episode will
give rise to separately punishable offenses.1
14 If the legislature determines that the two different ways of elevating third-
degree robbery to second-degree robbery, when committed in the course of a single
criminal episode, nevertheless should be punished separately, it may indicate its
intent in that regard by enacting those two paragraphs as separate criminal
offenses. See Crotsley, 308 Or at 279-80 (no merger where legislature established
crimes of first-degree rape and third-degree rape as "separate offenses").
1 ORS 161.067(1) 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

292 	State v. White
In a series of decisions over the past 20 years, this
court has interpreted the phrase "statutory provision" that
the legislature used in ORS 161.067(1), and the majority
attempts to reconcile and refine those decisions in the course
of determining whether each alternative means of commit-
ting second-degree robbery is a separate statutory provision.
Those decisions, the majority concludes, require the court to
determine, based on the text, context, and the legislative
history of the robbery statutes, whether the "legislature
intended to create a single crime or two crimes." 346 Or at
283. The majority explains that, among other things, that
inquiry "includes consideration of whether [two different
statutory] sections, although addressing different [legisla-
tive] concerns, may also address, on a more general level, one
unified legislative objective." Id. 	Applying that test, the
majority determines that, in providing alternative means of
committing second-degree robbery, the legislature intended
to create only one crime.
The majority appropriately synthesizes and follows
our precedents, and I join its opinion. I write separately
because, in my view, focusing solely on what our past deci-
sions have said about a statute can sometimes cause us to
lose sight of the statutory text that underlies those decisions,
and it is occasionally helpful to return to the text, context,
and history of a statute to determine whether our decisions
have drifted away from the legislature's intent. 2 In my view,
an examination of the text, context, and history of ORS
161.067 leads to a simpler and less subjective interpretation
of the phrase "statutory provision" than a synthesis of our
cases yields. Those sources demonstrate that each crime
not, there are as many separately punishable offenses as there are separate
statutory violations."
2 An examination of those sources is particularly appropriate in this case
because the two seminal cases that we have spent the last 20 years interpreting did
not engage in a textual and contextual analysis of ORS 161.0670). In State v.
Crotsley, 308 Or 272, 779 P2d 600 (1989), the court posited, ·without further expla-
nation, that the phrase " 'two or more statutory provisions' * * * include[s] prohi-
bitions such as those in this case that address separate and distinct legislative con-
cerns." id. at 278, a statement that the majority today disavows as an answer to the
meaning of that phrase, 346 Or at 289. In State u. Kizer, 308 Or 238, 779 P2d 604
(1989), the court found it unnecessary to engage in any analysis of ORS 161.067(1),
resting its decision instead on the legislature's statement that uttering a forged
instrument and making one were a single crime. Id. at 242-43.

Cite as 346 Or 275 	293
identified as such in the criminal code constitutes a separate
statutory provision and the fact that there are alternative
means of committing those crimes does not make each alter-
native means a separate provision within the meaning of
ORS 161.067(1).
ORS 161.067 has three subsections. The first subsec-
tion, which is at issue in this case, identifies the number of
separately punishable offenses that exist when the same con-
duct or criminal episode violates "two or more statutory pro-
visions." ORS 161.067(1). The second subsection identifies
the number of separately punishable offenses that exist
when the same conduct or criminal episode violates one stat-
utory provision but involves two or more victims. 	ORS
161.067(2). Finally, the third subsection identifies the num-
ber of separately punishable offenses that exist when the
same conduct or criminal episode violates one statutory
provision, involves one victim, "but nevertheless involves
repeated violations of the same statutory provision against
the same victim." ORS 161.067(3).
Each subsection of ORS 161.067 refers to violating
one or more "statutory provisions." However, neither the
criminal code generally nor the text of ORS 161.067 specifi-
cally defines what constitutes a "statutory provision," and the
word "provision" is broad enough to include either a section
defining a crime or a single clause within that section. Cf
Webster's Third New Int'l Dictionary 1827 (unabridged ed
2002) (defining "provision" as "a stipulation (as a clause in a
statute or contract) made in advance: PROVISO * * * <this -is
one of fundamental importance in our legal ... system * * *> ").
The text, in short, is of little help. The legislature appears to
have assumed that the phrase had such a well-understood
meaning that no definition was necessary.
Two separate contextual sources, however, provide a
clearer picture of the legislature's intent. The first contextual
source is an exception to ORS 161.067(3), which illustrates
the legislature's understanding of the phrase "statutory pro-
vision." After identifying how many separately punishable
offenses exist when the same criminal episode violates one
statutory provision, involves one victim, but also involves

294 	State v. White
multiple violations of the same provision against the same
victim, ORS 161.067(3) sets out the following exception:
"Each method of engaging in deviate sexual intercourse as
defined in ORS 163.305, and each method of engaging in
unlawful sexual penetration as defined in ORS 163.408 and
163.411 shall constitute separate violations of their respec-
tive statutory provisions for purposes of determining the
number of statutory violations."
The exception is telling in three respects. First, it
identifies ORS 163.408 and ORS 163.411 as "statutory pro-
visions." The first statute (ORS 163.408) defines the crime of
unlawful sexual penetration in the second degree, and the
second statute (ORS 163.411) defines the crime of unlawful
sexual penetration in the first degree. That context suggests
that each crime identified as such in the criminal code consti-
tutes a separate statutory provision and that, as a general
rule, the fact that there may be alternative methods of com-
mitting each of those crimes does not make each alternative
method of commission a separate statutory provision. Were
the general rule otherwise, there would have been no need to
add a caveat to ORS 161.067(3) and state that each method of
committing unlawful sexual penetration "shall constitute
separate violations of their respective statutory provisions
for 	purposes 	of determining 	the 	number 	of 	statutory
violations."
The texts of the two unlawful sexual penetration
statutes shed further light on the meaning of the phrase
"statutory provision" in ORS 161.067. Both unlawful sexual
penetration statutes identify multiple methods of commit-
ting that crime. A person commits the crime of unlawful sex-
ual penetration in the second degree "if the person penetrates
the vagina, anus or penis of another with [a foreign object]
* * * and 	the 	victim 	is 	under 	14 	years 	of age." 	ORS
163.408(1). A person commits the crime of unlawful sexual
penetration in the first degree "if the person penetrates the
vagina, anus or penis of another with [a foreign object]" and
"(a) 	The victim is subjected to forcible compulsion;
"(b) 	The victim is under 12 years of age; or

Cite as 346 Or 	295
"(c) 	The victim is incapable of consent by reason of
mental defect, mental incapacitation or physical help-
lessness."
ORS 161.411(1).
Those 	two 	statutes 	and 	the statement in ORS
161.067(3) that each of those statutes is a statutory provision
lead to two additional conclusions regarding the meaning of
the phrase "statutory provision." First, when the legislature
creates two crimes with different degrees of seriousness
(first-degree 	unlawful 	sexual 	penetration, 	second-degree
unlawful sexual penetration, and the like), each statutorily
designated degree of a crime is a separate statutory provi-
sion. And, when one act violates two statutory provisions, the
only question under ORS 161.067(1) is whether each provi-
sion, as charged, requires proof of an element that the other
does not. Ifit does, then there are as many separately punish-
able offenses as there are separate statutory violations. ORS
161.067(1).
Second, the fact that a crime, such as first-degree
unlawful sexual penetration, identifies multiple ways in
which the crime may be committed does not mean that one
act will give rise to multiple statutory violations. For exam-
ple, in addition to identifying multiple methods (insertion of
a foreign object into a victim's vagina, anus, or penis) of com-
mitting unlawful sexual penetration, ORS 161.411(1) also
identifies multiple ways in which a person can come within
the class of victims whose injury elevates those acts to first-
degree unlawful sexual penetration-forcible compulsion,
being under the age of 12, or being incapable of consent by
reason of mental defect, mental incapacitation, or physical
helplessness. Yet, ORS 161.067(3) makes clear that the leg-
islature understood that first-degree unlawful sexual pene-
tration was a single statutory provision and that only multi-
ple methods of committing unlawful 	penetration would
result in multiple statutory violations (and even that was an
exception to the general rule). It follows that, for the crime of
first-degree unlawful sexual penetration, the fact that the
victim was under the age of 12 and also subjected to forcible
compulsion does not mean that a single act of penetration

296 	State v. White
would violate two statutory provisions within the meaning of
ORS 161.067(1).
Not only does the exception in ORS 161.067(3) pro-
vide insight into the meaning of the phrase "statutory provi-
sion," but two cases that preceded the enactment of ORS
161.067 provide additional context. In State u. Woolard, 259
Or 232, 484 P2d 314, on reh'g, 485 P2d 1194 (1971), and in
State u. Cloutier, 286 Or 579, 596 P2d 1278 (1979), the court
held that a defendant who committed burglary and theft
(when theft was the intended crime on entry into the house)
could be punished for only one offense. In Woolard, the court
inferred from the fact that burglary carried a greater sen-
tence than theft from a dwelling that the legislature intended
that the former offense would subsume the latter. 259 Or at
237-38. In Cloutier, the court looked to whether the defen-
dant had a single criminal objective in deciding whether the
two crimes constituted only one punishable offense. 286 Or at
596-97. Justice Tongue dissented in Cloutier. He explained
that, before Woolard and Cloutier, the rule was clear: When
one act violated two separate statutes, such as burglary and
theft, and each contained an element that the other did not,
there were two separately punishable offenses. Id. at 605
(Tongue, J., dissenting). In his view, the court erred in
Woolard and again in Cloutier in departing from that rule. 3
ORS 161.067(1) reinstates the rule that Justice
Tongue advocated in Cloutier. 	It reverses the rule from
Woolard and Cloutier that a single act that violates two crim-
inal statutes, such as burglary and theft, will result in only
one punishable offense if the two violations are in further-
ance of a single criminal objective. There is no reason, how-
ever, to think that the legislature intended to go farther than
that in reversing the rule in Woolard and Cloutier and make
alternative ways of committing a single crime separately
punishable offenses; rather, the most natural interpretation
of the phrase "two or more statutory provisions" is that it
refers to the sort of statutes defining separate criminal
3 Justice Howell concurred in the result in Cloutier. 286 Or at 603. He noted
that he had dissented in Woolard and that "[a]ny further expression of dissent
would be a futility." Id. (Howell, J., specially concurring).

Cite as 346 Or 275 	297
offenses, such as burglary and theft, that were at issue in
Woolard and Cloutier.
The legislative history supports that understanding.
See State v. Gaines, 346 Or 160, 172, 206 P3d 1042 (2009)
("Legislative history may be used to confirm seemingly plain
meaning and even to illuminate it * * *."). The legislative his-
tory of ORS 161.067 is unique because, as the court noted in
State v. Crotsley, 308 Or 272, 779 P2d 600 (1989), the legis-
lature enacted one version of the statute in 1985 and the peo-
ple reenacted by initiative a second, almost identical version
of the statute in 1986. Id. at 276 n 3. The two versions differ
in one respect. The 1985 statute provided, as does the 1986
reenactment, that, when the same conduct or criminal epi-
sode violated two or more statutory provisions, there were as
many separately punishable offenses as there were separate
statutory violations. Or Laws 1985, ch 722, § 4(1); Or Laws
1987, ch 2, § 13(1). The 1985 statute then added the following
exception, which the 1986 reenactment omitted:
"However, when one of the statutory provisions violated is
burglary in any degree, and the other statutory provision
violated is theft or criminal mischief in any degree, and the
theft or criminal mischief was pleaded as the intended
crime of the burglary, the burglary and the theft or criminal
mischief shall constitute only one punishable offense."
Or Laws 1985, ch 722, § 4(1). The 1985 exception preserves
the specific holding in Woolard and Cloutier, while the 1986
reenactment omits that exception and thus "overrules" the
holdings in those cases. 4 But more importantly for the pur-
poses of this case, the 1985 exception equates the phrase
"statutory provision" with the crimes of "burglary in any
degree" and "theft or criminal mischief in any degree." Put
differently, the exception makes clear that the 1985 legisla-
ture understood that each degree of burglary, theft, and crim-
inal mischief constituted a separate statutory provision, in
much the same way that the exception to ORS 161.067(3)
makes that same understanding clear.
4 The 1985 legislative bill was codified as ORS 161.062, and the 1986 initiated
measure was codified as ORS 161.067. Initially, both statutes "remain[ed] on the
books." Crotsley, 308 Or at 276 n 3. However, in 1999, the legislature repealed ORS
161.062, leaving ORS 161.067 in place. Or Laws 1999, ch 136, § 1.

298 	State v. White
Finally, the explanation to the legislature of the
1985 bill leads to the same conclusion. A spokesperson for the
Oregon District Attorneys Association explained that the
1985 counterpart to what is now codified as ORS 161.067(1)
"adopts the federal rule first announced in U.S. v. Blockburger,
284 U.S. 299 (1932), permitting separate convictions for each
proven 	statutory 	violation, 	provided 	that 	each 	statute
requires proof of an element not required by others." Testi-
mony, Senate Judiciary Committee, SB 257, May 15, 1985,
Ex G (statement of Peter F. Sandrock, Jr.). 5
Beyond identifying Blockburger as the apparent
source of what is now ORS 161.067(1), Sandrock's letter does
not explain what, in his view, constitutes a "statutory provi-
sion." However, in Blockburger, the Court used the phrase
consistently with the definition set out above. Specifically,
the 	Court explained 	in 	Blockburger 	that 	the 	Harrison
Narcotic Act, Pub L No 223, 38 Stat 785 (1914) (repealed
1970), created two separate criminal offenses. One offense
made it unlawful to sell narcotics except in the original
stamped package. 284 US at 203-04. The other offense made
it unlawful to sell narcotics without a written order. Id. The
Court described the two crimes as "distinct statutory provi-
sions" and ruled that, because a single sale of narcotics vio-
lated both provisions and because each provision required
proof of a fact that the other did not, the defendant's single
sale gave rise to two separate offenses. 284 US at 304. As the
Court used the phrase "statutory provision" in Blockburger,
that phrase means nothing more or less than what the legis-
lature has defined as a crime. 6
5 The Court explained in Block burger:
"The applicable rule is that where the same act or transaction constitutes a vio-
lation of two distinct statutory provisions, the test to be applied to determine
whether there are two offenses or only one, is whether each provision requires
proof of a fact which the other does not."
284 US at 304.
" As noted, the people reenacted the 1985 statute in 1986 but omitted the
exception discussed above. The official explanation for the measure states that that
part of the measure "(s]lightly expand[s] the circumstances under which a person
may be convicted of separate offenses." Voters' Pamphlet, General Election, Nov 4,
1986, 52. That explanation accurately describes the difference between the 1986
measure and the 1985 statute but sheds no additional light on the meaning of the
phrase "statutory provision."

Cite as 346 Or 275 (2009) 	299
In my view, the text, context, and history of ORS
161.067 reveal that the phrase "statutory provision" has a
more straightforward meaning than our cases have given it.
When the legislature makes it a crime to commit certain acts,
each statutorily defined crime is a separate statutory provi-
sion, and each degree of that crime is a statutory provision.
The fact that the legislature identifies alternative ways to
commit a crime does not mean that the legislature has cre-
ated more than one statutory provision, however.
Not only is that interpretation truer to the legisla-
ture's intent than the test that the majority draws from our
cases, but it also is more certain in its application (both for
the courts and the legislature when it drafts criminal stat-
utes). Beyond that, it is consistent with the results in this
court's decisions. When, as in Crotsley, the state charges a
defendant with first- and third-degree rape, each degree of
the crime is a separate statutory provision that will give rise
to separately punishable offenses, provided that each provi-
sion requires proof of an element that the other does not. Cf
Crotsley, 308 Or at 278-79 (holding that the two offenses were
separate statutory provisions because they addressed sepa-
rate and distinct legislative concerns). Conversely, when the
legislature provides alternative means of committing a spec-
ified crime, there is only one statutory provision. It follows
that, when in State v. Kizer, 308 Or 238, 779 P2d 604 (1989),
State v. Barrett, 331Or27, 10 P3d 901 (2000), State v. White,
341 Or 624, 147 P3d 313 (2006), and this case, the state
charges and proves both alternative means, only one statu-
tory provision has been violated and there is only one sepa-
rately punishable offense (assuming of course that there are
not multiple victims or repeated violations of the same pro-
vision). Because I agree with the result that the majority
reaches and because I cannot disagree with its reliance on
precedent, I concur in the majority's opinion.
Walters and Linder, JJ., join in this opinion.