S057117, Opinion — State v. Blake

95
Argued and submitted January 5, decision of Court of Appeals reversed; judgment
of circuit court reversed, and case remanded to circuit court for further proceedings
March 25, 2010
STATE OF OREGON,
Respondent on Review,
v.
MICHAEL PAUL BLAKE,
Petitioner on Review.
(CC 041136416; CAA131739; SC S057117)
228 P3d 560

96 	State v. Blake
CJS, Criminal Law§ 14.
On review from the Court of Appeals.*
George W. Kelly, Eugene, argued the cause and filed the
brieffor petitioner on review.
Michael 	R. 	Washington, 	Senior 	Assistant 	Attorney
General, argued the cause and filed the brief for respondent
on review. With him on the brief were John R. Kroger,
Attorney General, and Jerome Lidz, Solicitor General.
Anne Fujita Munsey, Senior Deputy Public Defender,
Salem, argued the cause and filed a brief for amicus curiae
Office of Public Defense Services. With her on the brief were
Peter Gartlan, Chief Defender, and Robin A. Jones, Senior
Deputy Public Defender.
Before De Muniz, Chief Justice, and Gillette, Durham,
Balmer, Walters, and Linder, Justices.**
WALTERS,J.
The decision of the Court of Appeals is reversed. The judg-
ment of the circuit court is reversed, 	and 	the case is
remanded to the circuit court for further proceedings.
* 	Appeal from Multnomah County Circuit Court, Alicia A. Fuchs, Judge. 225
Or App 501, 201 P3d 941 (2009).
** Kistler, J., did not participate in the consideration or decision of this case.

Cite as 348 Or 95 	97
WALTERS,J.
The issue in this criminal case is whether the trial
court should have merged defendant's guilty verdicts for one
count of forgery in the first degree, ORS 165.013(1)(a), and
one count of criminal possession of a forged instrument in the
first degree, ORS 165.022(1), when both counts were based
on the single act of attempting to make a purchase with a
forged $100 bill. The trial court entered a judgment of convic-
tion on two counts, and the Court of Appeals affirmed with-
out opinion. State v. Blake, 225 Or App 501, 201 P3d 941
(2009). We allowed review and now reverse and remand to
the circuit court for further proceedings.
The facts are straightforward. Defendant attempted
to purchase groceries using forged currency, namely, a coun-
terfeit $100 bill. Subsequently, the state charged defendant
with one count of forgery in the first degree (forgery), ORS
165.013(1)(a), and one count of criminal possession of a
forged instrument in the first degree (criminal possession of a
forged instrument), ORS 165.022(1). 1 Ajury found defendant
guilty of both charges. At sentencing, defendant's attorney
unsuccessfully argued that the two guilty verdicts should
merge into a single conviction for forgery. As noted, the Court
of Appeals affirmed without opinion.
On review, the state maintains that the two guilty
verdicts are separately punishable and should result in a
judgment of conviction on two counts under ORS 161.067(1),
which 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."
1 The factor that makes both crimes first-degree offenses is that the forged
instrument "is or purports to be [p)art of an issue of money." Compare ORS 165.007
(forgery in the second degree} with ORS 165.013 (forgery in the first degree) and
ORS 165.017 (criminal possession of a forged instrument in the second degree)
with ORS 165.022 (criminal possession of a forged instrument in the first degree).
The nature of the forged instrument is not at issue here, and, for readability, we
refer to the crimes of which defendant was found guilty without repeating that
those crimes were first-degree offenses.

98 	State v. Blake
Defendant, on the other hand, asserts that, under ORS
161.067(1), only one separately punishable offense exists and
that the judgment of conviction therefore should be entered
on only one count-forgery.
When the defendant has engaged in acts that consti-
tute "the same conduct" or that are part of the "same criminal
episode," ORS 161.067(1) makes each statutory violation a
separately punishable offense when two circumstances exist:
(1) the defendant's acts violate "two or more statutory provi-
sions"; and (2) each statutory provision requires "proof of an
element that the others do not."
The parties in this case agree that the conduct that
gave rise to the two charges against defendant constituted
the same conduct, and thus there is no question that ORS
161.067(1) applies. The first circumstance necessary to deter-
mine whether defendant committed more than one sepa-
rately punishable offense is whether defendant's action vio-
lated two or more statutory provisions. Where the legislature
defines each crime in a separately numbered and labeled
statutory section, as it does in this instance, it is difficult to
see how those sections can be anything other than separate
statutory provisions for purposes of ORS 161.067(1). See
State v. Parkins, 346 Or 333, 354-55, 211 P3d 262 (2009) (so
stating with respect to separate statutory sections defined as
different 	degrees 	of 	incrementally 	graded 	offense 	and
assigned different punishments); State v. White, 346 Or 275,
294, 211 P3d 248 (2009) (Kistler, J., concurring) (explain-
ing reasons 	that 	separate statutory sections 	should be
treated as separate statutory provisions for purposes of ORS
161.067(1)). We need not decide, however, whether the par-
ticular format that the legislature used here is determinative
of its intent. For a court to find separate punishable offenses
under ORS 161.067(1), the state also must establish that
each statutory provision requires proof of an element that the
other does not. Because we conclude that the state cannot
establish that second circumstance here, we decline to fur-
ther examine the first.
As noted, when ORS 161.067(1) is applicable, the
second circumstance necessary to a finding of separately
punishable offenses is that each statutory provision must

Cite as 348 Or 95 	99
require proof of an element that the other does not. That cir-
cumstance was at issue in State v. Crotsley, 308 Or 272, 779
P2d 600 (1989). There, the court concluded that first-degree
rape and third-degree rape each incorporated an element
that the other did not, because the former included the ele-
ment of forcible compulsion, and the latter included the ele-
ment of the victim's age. Id. at 279-80. In contrast, if one
offense contains X elements, and another offense contains X
+ 1 elements, the former offense does not contain an element
that is not also found in the latter offense. 2 In that situation,
under ORS 161.067(1), there is only one separately punisha-
ble offense.
Defendant argues that criminal possession of a
forged instrument under ORS 165.022(1) contains only ele-
ments that are also found in the offense of forgery under ORS
165.013(1) and therefore that, under ORS 161.067(1), there is
only one separately punishable offense. To test that argu-
ment, we must compare the elements of each offense.
ORS 165.013(1)(a)(A) defines the crime of forgery
and provides:
"A person commits the crime of forgery in the first
degree if the person violates ORS 165.007 [a]nd the written
instrument is or purports to be * * * [p]art of an issue of
money***."
ORS 165.007(1), in turn, 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."
The 	indictment 	charged 	defendant 	under 	ORS
165.007(1)(b). 3 Thus, for purposes of our analysis, proof
of forgery requires proof of the following elements:
2 For examples of such statutes, see ORS 164.043 (third-degree theft); ORS
164.045 (second-degree theft); and ORS 164.055 (first-degree theft).
The indictment stated, in part, that defendant
"did unlawfully, knowingly and with intent to injure and defraud, utter a writ-
ten instrument, to-wit: a $100 bill, which purported to be part of an issue of

100
(1) 	Intent to injure or defraud;
(2) 	Uttering of;
(3) 	A forged bill;
(4) 	Knowing the bill to be forged.
State v. Blake
ORS 165.022(1) defines criminal possession of a
forged instrument and provides:
"A person commits the crime of criminal possession of a
forged instrument in the first degree if, knowing it to be
forged and with intent to utter the same, the person pos-
sesses a forged instrument of the kind and in the amount
specified in ORS 165.013(1)."
Under ORS 165.013(1), counterfeit currency qualifies as a
forged instrument. Thus, for our purposes, criminal posses-
sion of a forged instrument requires proof of the following
elements:
(1) 	Intent to utter;
(2) 	Possession of;
(3) 	A forged bill;
(4) 	Knowing the bill to be forged.
Defendant argues that all the elements of criminal
possession of a forged instrument are found in forgery.
Defendant is obviously correct as to the last two elements of
criminal possession of a forged instrument-a forged bill,
known to be forged. Those elements also are found in the
terms of the crime of forgery. As to the first two elements of
criminal possession of a forged instrument-intent to utter
and possession-defendant contends that those elements
also are found in the act and intent required by the second
element of forgery-uttering. According to defendant, a per-
son who utters a forged instrument necessarily possessed it
and intended to utter it.
We consider first the conduct required by the two
offenses. Criminal possession of a forged instrument requires
the act of possession; the crime of forgery requires the act of
money issued by The Treasury Department of the United States of America, a
governmental agency, defendant[ ] knowing said instrument to be forged[.]"

Cite as 348 Or 	101
uttering. To "possess" means to "have physical possession or
otherwise to exercise dominion or control over property."
ORS 161.015(9). To "utter" means to "issue, deliver, publish,
circulate, disseminate, transfer or tender a written instru-
ment or other object to another." ORS 165.002(7). It is diffi-
cult to see how one could carry out any of those latter acts
without also possessing the thing to be issued, delivered, pub-
lished, circulated, disseminated, transferred, or tendered.
The state contends that there are two reasons that
we should not draw that conclusion. First, the state argues, a
defendant could be liable for forgery as an accomplice with-
out himself or herself possessing the forged document. How-
ever, an accomplice theory of liability is not itself an inde-
pendent offense. Accomplice liability makes a person who
aids or abets a crime liable for that crime even though the
accomplice may not have committed any of the acts that the
crime entails. See ORS 161.155(2)(b) (criminal liability for
aiding and abetting another person in planning or commit-
ting a crime). Because the principal who utters a forged
instrument also necessarily possesses it, a person who aids
and abets the principal in the crime of forgery by definition
also aids and abets the principal in the crime of criminal pos-
session of a forged instrument. An accomplice who 	liable
for forgery is also liable for criminal possession of a forged
instrument.
Second, the state argues that one could, through
means other than possession, utter a forged instrument.
As an example, the state posits that a person could use the
Internet to manipulate a bank account and thereby issue a
check without physically possessing it, thus uttering a forged
instrument. Possession, however, encompasses more than
physically possessing an object. As this court previously has
observed:
" 'Possession' ordinarily means 'the act or condition of hav-
ing in or taking into one's control or holding at one's dis-
posal.' That definition is broad enough to include personal
property within the suspect's immediate reach as well as
property under the suspect's dominion and control[.] * * *
Put more succinctly, 'possession' includes both actual and
constructive possession."

102 	State v. Blake
State u. Connally, 339 Or 583, 591, 125 P3d 1254 (2005)
(quoting Webster's Third New Int'[ Dictionary 1770 (una-
bridged ed 2002)). The ability to manipulate a bank account
using a computer is sufficient to constitute "dominion and
control," and thus is possession for purposes of the forgery
statute. We therefore reject the state's two contentions and
conclude that the act of uttering necessarily includes the act
of possessing.
Proof of the act necessary to establish the crime of
forgery also proves the act necessary to establish the crime of
criminal possession of a forged instrument. Stated another
way, the crime of criminal possession of a forged instrument
does not require proof of an act that is not also required to
prove the crime of forgery.
Turning to the intent element of the two crimes at
issue, 	we recognize 	that the crime of forgery 	does not
expressly require that a defendant must utter a forged
instrument with the intent required by the crime of criminal
possession of a forged instrument-the intent to utter it. The
crime of forgery requires, instead, that the defendant have an
intent to injure or defraud. In our view, a person cannot utter
a forged bill to another with an intent to injure or defraud
that person without also having an intent to present that bill
to the person to be injured or defrauded. In other words, proof
of intent to injure or defraud also necessarily proves the
intent to utter. Therefore, proof of the intent necessary to
establish the crime of forgery also proves the intent neces-
sary to establish the crime of criminal possession of a forged
instrument. In other words, the crime of criminal possession
of a forged instrument does not require proof of an intent that
is not also required to prove the crime of forgery.
Criminal possession of a forged instrument does not
require proof of an element-an act or an intent-that is not
also required to prove the crime of forgery. 4 Therefore, we
conclude that the second requirement necessary to establish
separately punishable offenses when ORS 161.067(1) applies
4 For purposes of ORS 161.067( 1), it is of no consequence that the crime offirst-
degree forgery contains elements that possession of a forged instrument does not.
"[E]ach" statutory provision must contain an element that the other does not. ORS
161.067(1).

Cite as 348 Or 	103
has not been met in this case. Although two guilty verdicts
were obtained, there is only one separately punishable
offense. We therefore remand this case to the circuit court for
entry of a judgment of conviction on the forgery count.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is reversed, and the case is
remanded to the circuit court for further proceedings.