ORS 161.067(1). Following Barrett, in State v. Beason, 170 Or App 414, 12 P3d 560 (2000), rev den, 331 Or 692 (2001), we concluded, in a similar fashion, that when a person is convicted of multiple counts of murder pursuant to ORS 163.115, based on different theories concerning the killing of the same victim, those convictions should merge pursuant to ORS 161.067(1). We reasoned that merger was required because the legislature envisioned intentional murder, felony murder, and murder by abuse not to be separate crimes, but to be alternative theories for the crime of murder.
Further, the circumstance at issue in each offense does not require proof of an "element" that the other circumstances do not. In State v. Beason, 170 Or App 414, 429-30, 12 P3d 560 (2000), rev den, 331 Or 692 (2001), we concluded that where the prefatory language of subsection (1) of the murder statute, ORS 163.115, referred to acts that "constitute murder," that fact suggested that each of the following paragraphs merely described separate ways of committing that single offense. Here, defendant was convicted of three counts of arson based on ORS 164.325(1)(b).
Fazzolari, 303 Or. at 17, 734 P.2d 1326. George v. Myers, 169 Or.App. 472, 487 n. 13, 10 P.3d 265 (2000), rev. den.,331 Or. 692, 26 P.3d 149 (2001) (“Recast in post-Fazzolari terms, Yowell's rule is that the relationship between a possessor of land or contractor and a specialized subcontractor embodies a special ‘status' or ‘relationship,’ taking precedence over application of ordinary principles of general foreseeability. Fazzolari[, 303 Or. at 17, 734 P.2d 1326].”).
Fazzolari, 303 Or. at 17. In George v. Myers, 169 Or. App. 472, 487 n 13, 10 P.3d 265 (2000), rev den, 331 Or. 692 (2001), we noted that, "[r]ecast in post- Fazzolari terms, Yowell's rule is that the relationship between a contractor and a specialized subcontractor embodies a special `status' or `relationship,' taking precedence over application of ordinary principles of general foreseeability." See also Fortney v. Crawford Door Sales Corp., 97 Or. App. 276, 280, 775 P.2d 910 (1989) (citing Fuhrer v. Gearhart By The Sea, Inc., 306 Or. 434, 760 P.2d 874 (1988)) ("although Fazzolari has changed the role of duty in negligence law, it has not eliminated the rule that a defendant must have some responsible involvement with an event in order to be found negligent for its occurrence").
Affirmed. SAIF v. Lewis, 170 Or. App. 201, 12 P.3d 498 (2000), rev allowed 331 Or. 692 (2001). Wollheim, J., concurring.
The legislative history of the 1981 amendment leads us to conclude that plaintiff's interpretation of the statute is correct. Allstate argues, however, that two of our decisions — Estate of Linda Greenslitt v. Farmers Ins. Co., 156 Or. App. 75, 964 P.2d 1129 (1998), rev dismissed 331 Or. 692 (2001), and Pitchford v. State Farm Mutual Auto. Ins. Co., 147 Or. App. 9, 934 P.2d 616 (1997) — point in a different direction. We discuss those decisions briefly and begin with Pitchford, on which Allstate primarily relies.
(5) The prior proceeding was the type of proceeding to which this court will give preclusive effect.Stevens v. Horton, 161 Or.App. 454, 461, 984 P.2d 868 (1999), rev. denied,331 Or. 692, 26 P.3d 149 (2001). The third, fourth, and fifth elements of issue preclusion are not seriously disputed.
The Oregon Court of Appeals affirmed from the bench, and the Oregon Supreme Court denied review. State v. Nelson, 170 Or. App. 159, 10 P.3d 335 (2000), rev. denied, 331 Or. 692 (2001). Petitioner sought state post-conviction relief, raising ineffective assistance of counsel and due process claims.
The Court of Appeals affirmed in a written opinion, and the Oregon Supreme Court denied review. State v. Horsley, 169 Or. App. 438, 8 P.3d 1021 (2000), rev. denied, 331 Or. 692, 26 P.3d 149 (2001). Petitioner then filed a petition for state post-conviction relief ("PCR").
Petitioner directly appealed his convictions, but the Oregon Court of Appeals affirmed without opinion, State v. Janes, 169 Or. App. 652, 10 P.3d 336 (2000), and the Oregon Supreme Court denied review. 331 Or. 692, 26 P.3d 149 (2001). Petitioner next sought state post-conviction relief.