State v. Johnson

*432WARDEN, P. J.

Defendant was convicted on five counts of theft in the first degree (Theft I), ORS 164.055,1 charged in three separate informations. He appeals all five convictions.2 We affirm in part and reverse in part.

The information in case no. C86-03-31287 charged defendant with two counts of Theft I from Fred Meyer, Inc. Count I charged theft by writing 21 checks on a closed bank account3 at five different Fred Meyer stores on September 2, 1985. The total amount of the checks written in any one store did not reach $200. Count II charged theft by writing 10 checks at two different Fred Meyer stores on September 4, 1985. The total amount of the checks written in one store exceeded $200; in the other the total was less than $200.

The information in case no. C86-03-31293 charged two counts of Theft I from Nordstrom’s, Inc. Count I charged theft by writing four checks at one store and one check at another on September 8, 1985. The four checks total over $200, but the single check was for less than that amount. Count II charged theft by writing two checks totalling over $200 at a Nordstrom store on September 9, 1985.

The information in case no. C86-03-31288 charged theft by writing four checks, totalling over $200, at one J. C. Penney store on October 8,1985.

Defendant demurred to the informations on the ground that the 42 separate checks were improperly alleged as five aggregate transactions in five counts of Theft I. His argument, renewed on appeal, is that, because each of the 42 checks was for less than $200, he could only be charged with 42 counts of theft in the second degree (Theft II). ORS 164.045.4 *433The trial court overruled the demurrers, reasoning that the allegations of aggregate transactions were proper, because each count involved a continuous course of the same criminal conduct against the same victim, even though all of the checks in some counts were not alleged to have been written at the same store.

The material issue is whether the acts alleged in each count fall within the meaning of an “aggregate transaction” under ORS 164.055(1)(a). See n 1 and n 4, supra. In State v. Barnes, 14 Or App 23, 33, 511 P2d 1235 (1973), we interpreted the statutory language “as authorizing ‘aggregation’ only if the component acts are part of the same ‘transaction’ as that word has been previously used by the Oregon Supreme Court.” The Supreme Court, in interpreting ORS 132.560(2) (which details when two or more charges may be joined in an indictment), has stated:

“[T]wo charges arise out of the same act or transaction if they are so closely linked in time, place and circumstance that a complete account of one charge cannot be related without relating details of the other charge.” State v. Fitzgerald, 267 Or 266, 273, 516 P2d 1280 (1973).

To fall within the meaning of an “aggregate transaction” under ORS 164.055(1)(a), therefore, a defendant’s acts must be closely connected in time, place and circumstance, and there must also be an overlap of evidence connecting the acts.

The state concedes that the trial court erred by allowing aggregation of the checks in both counts of the information charging theft from Fred Meyer (case no. C86-03-31287), and Count I of the information charging theft from Nordstrom (case no. C86-03-31293). Because each of those counts alleges an aggregate transaction from checks written in more than one of the respective victims’ stores, those acts or transactions are not so closely linked as to place that an account of one necessitates relating the details of the others.

The state argues, however, that the information *434charging theft from J.C. Penney and Count II of the information charging theft from Nordstrom’s properly charged Theft I, because defendant’s acts of writing checks on the same closed account in the same store on the same day constitute a continuous course of conduct with a common criminal objective and because those acts are not separated by time or place. We agree that the charges in those counts fall within the meaning of “aggregate transaction” under ORS 164.055(1)(a), and we therefore affirm those convictions.5

Convictions in case no. C86-03-31288 and Count II of case no. C86-03-31293 affirmed; case no. C86-03-31287 and Count I of Case No. C86-03-31293 vacated and remanded for entry of judgments of conviction for theft in the second degree and resentencing.

ORS 164.055 provides, in relevant part:

“(1) A person commits the crime of theft in the first degree if, by other than extortion, the person commits theft as defined in ORS 164.015; and
“(a) The total value of the property in a single or aggregate transaction is $200 or more * *

The appeals are consolidated.

All the checks referred to in this opinion were drawn on the same closed account.

ORS 164.045 provides:

“(1) A person commits the crime of theft in the second degree if, by other *433than extortion, the person:
“(a) Commits theft as defined by ORS 164.015; and
“(b) The total value of the property in a single or aggregate transaction is under $200.”

Our decision here is not inconsistent with State v. Barker/Phelps, 86 Or App 394, 739 P2d 1045 (1987). In that case, we affirmed the defendants’ convictions on two counts of attempted burglary and one count of burglary for their acts committed in three self-contained units within a large commercial storage facility, in part because each unit was rented by a different individual. Here, the checks written by defendant were “aggregated” only when they were written in the same store on the same day, and each crime was thus committed against the same victim.