Opinion
86-2438-C-2; CA A44213
Argued and submitted November 25, 1987
Affirmed March 9, 1988
Appeal from Circuit Court, Jackson County.
L.L. Sawyer, Judge.
Diane L. Alessi, Deputy Public Defender, Salem, argued the cause for appellant. With her on the brief was Gary D. Babcock, Public Defender, Salem.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Joseph, Chief Judge, and Warren and Rossman, Judges.
ROSSMAN, J.
Affirmed.
Defendant was convicted on stipulated facts of two counts of aggravated murder arising from his killing of two people in the same criminal episode. He was sentenced to consecutive life terms with 30-year mandatory minimum terms. Defendant argues that, because the aggravated murder charge against him involved more than one victim, he should have been convicted of one count of aggravated murder and one count of murder, instead of two counts of aggravated murder.
ORS 163.095 provides:
"As used in ORS 163.105 and this section, `aggravated murder' means murder as defined in ORS 163.115 which is committed under, or accompanied by, any of the following circumstances:
"(1) * * *
"* * * * *
"(d) There was more than one murder victim in the same criminal episode as defined in ORS 131.505."
In State v. Norris, 40 Or. App. 505, 595 P.2d 1261, rev den 287 Or. 355 (1979), we held that "there may be as many counts of aggravated murder as there are victims." 40 Or App at 508. Defendant contends that Norris was overruled by 1981 changes to ORS 163.095 (1)(d), by which the legislature added the phrase "in the same criminal episode as defined in ORS 131.505." The 1981 amendment does not change our ruling in Norris. The change merely makes explicit what was already implicit in the statute: a murder on Monday and an unrelated murder on Friday would not support a charge of aggravated murder just because there were two victims. However, when multiple murders occur in the course of the same criminal episode, as they did in Norris, there may be as many counts of aggravated murder as there are victims.
Affirmed.