State v. Zachery

"When a criminal episode violates only one statutory provision and involves only one victim, repeated violations are separately punishable if they are separated from other such violations by a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent.” ORS 161.067(3).

Defendant appealed the trial court’s findings of contempt on five counts of violating a restraining order. Defendant argued that all of his conduct had been charged under the same statute and same victim, therefore, violating a statutory provision. The State agreed that some of the charges should merge together but disagreed with Defendant on the assertion that all charges should merge. ORS 161.067(3) states that “when a criminal episode violates only one statutory provision and involves only one victim, repeated violations are separately punishable if they are separated from other such violations by a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent.” The Court agreed with the State’s assertion upon viewing the evidence as a whole and held that there was enough time in between two groups of contacts made by Defendant to allow him a chance to renounce his criminal intent. Reversed and remanded for entry of judgment reflecting two findings of contempt; otherwise affirmed.