dissenting in part; concurring in part.
I agree with the majority that the denial of defendant’s motion for a judgment of acquittal was not error and that the consecutive sentences for first degree rape and sodomy were lawful. However, I believe that the trial court erred in failing to merge the first and third degree rape and sodomy convictions and, therefore, I respectfully dissent.
The majority concludes that the provisions of ORS 161.062(1) do not allow the merger of the first and third degree convictions. That statute provides, in pertinent 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.”
The majority reasons that, because the first and third degree rape and the first and third degree sodomies require proof of different elements, they are separately punishable *352offenses. In my opinion, it is unclear whether the term “provisions” used in the statute refers to a criminal offense, a separately numbered statute or to the separate subsections of a statute. The ambiguity becomes particularly troublesome when we are dealing with offenses which are degrees of the same offense, as in this case. The majority’s reading is one possible interpretation of the statute, but it is not consistent with the legislative history and purpose in adopting ORS 161.062(1), as well as with the legislative purpose of establishing degrees of the same offense.
As noted by the majority, ORS 161.062(1) was adopted to provide legislative direction in an area of the law which was characterized as plagued by uncertainty, inconsistency and leniency resulting from the merger of convictions when an offender had committed multiple crimes in a single criminal episode. Minutes, House Committee on Judiciary, May 27,1985 (testimony of William F. Gary, Deputy Attorney General). Gary explained the purpose of the legislation:
“As early as 1969, the Supreme Court identified a gap in legislative policy with respect to criminal sentencing: At what point in a criminal episode does a person become liable for multiple crimes and subject to multiple punishments? If a person breaks into a home and steals jewelry, is that person to be convicted of burglary, theft, or both? See State v. Woolard, 259 Or 232, 484 P2d 314 (1969). If a person commits rape and sodomy, is he to be convicted of both? If he sodomizes his victim in two different ways, is he to be convicted of one sodomy or two? See State v. Garcia, 288 Or 413, 605 P2d 671 (1980). If a drinking driver criminally causes an automobile collision and kills two people, is that person to be convicted of one homicide or two? See State v. Lopez, 56 Or App 179, 641 P2d 596, rev den (1982). If a person brandishes a knife, threatens a dozen people and robs them, how many criminal convictions have been earned? See State v. Linthwaite, 295 Or 162, 665 P2d 863 (1983). For nearly 20 years, Oregon’s courts have struggled with problems of ‘merger’ and multiple punishment. In attempting to articulate rules to resolve these problems, the Court has consistently described the subject as uniquely legislative. Its decisions are attempts to divine legislative intent on a subject about which the legislature has been strangely silent.
* * * *
“SB 257 [which would enact ORS 161.062(1)] would *353clearly and unequivocally express a legislative policy judgment that crimes committed in a single criminal episode should be recorded separately on a person’s criminal record. A person who burglarizes a house and rapes the occupant may be convicted of both burglary and rape. A person who repeatedly sodomizes a victim may be convicted of separate crimes for each distinct act of sodomy. Under current law, in each of those instances, only one criminal conviction could be entered on the offender’s record. The history of the offender’s criminal conduct is literally rewritten by the Court by ‘merging’ separate criminal acts into one big crime. SB 257 would halt this practice and ensure that a person’s criminal record accurately reflects the number of crimes of which he or she has been judged guilty.
“The judicial practice of ‘merging’ criminal convictions has developed because of an absence of legislative guidance as to when a law violator should be subject to multiple punishments for separate criminal violations committed during a single criminal episode. SB 257 properly recognizes that the number of convictions that should be entered is (or should be) a wholly separate question from the appropriate sentence to be imposed for the entire course of conduct.”
Notably, there is no mention in the legislative history of an intent to allow a defendant to be convicted of two degrees of the same offense. In contrast to the examples cited in the legislative history, which all involve separate acts or multiple victims, the activity constituting different degrees of the same offense here involves the same act and the same victim.
An interpretation of ORS 161.062(1) allowing convictions for different degrees of the same offense would also be inconsistent with the legislative purpose in establishing degrees of the same offense, which was to provide a penalty structure commensurate with the severity of the actual offense. Commentary to Proposed Oregon Criminal Code 111, 114 (ORS 163.375 and ORS 163.405) (1970). The legislature intended that third degree rape and first degree rape could be alternative charges for a single act, with the person subject to conviction for the more serious. To allow convictions for different degrees of an offense for the same act is not consistent with that intent. Under the majority’s interpretation, a person who stole a gun worth more than $50, but less than $500, could be convicted for both theft in the first degree, ORS 164.055(1)(d), and theft in the second degree, ORS *354164.045(l)(b). A person who forcibly raped a 13-year-old girl would, by that one act, be subject to simultaneous convictions for all three degrees of rape. I do not believe that ORS 161.062 was intended to allow a defendant to be convicted of two degrees of rape and two degrees of sodomy for the same acts. Accordingly, I respectfully dissent.