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4th Theory of Mergerby: Ryan Scott • May 8, 2024 • no comments FOURTH THEORY OF MERGER Lesser-Included Offenses This has a lot of overlap with the Third Theory of Merger. Examples #3 and #4 immediately above would also arguably fall into this section, but generally when we think of lesser-included offenses, we think of assault IV as a lesser-included of assault III or assault II for example. A crime is a lesser-included offense if it includes all but one or two of the elements of the higher offense and does not contain any additional elements. Generally, robbery in the second degree (purporting to have, for example, a firearm) is not a lesser-included offense of robbery in the first degree (armed with a deadly weapon) because the former offense has an element the latter offense does not (that is, displaying or pretending to display a dangerous weapon). But robbery in the second degree might be converted into a lesser-included offense if the robbery in the first degree count includes the additional allegation of “with a firearm.” Example #1: Reckless burning can be a lesser-included offense of arson. State v. Leckenby, 200 Or App 684 (2005). 3rd Theory of Mergerby: Ryan Scott • May 8, 2024 • no comments THIRD THEORY OF MERGER Crimes that are (1) Related but have (2) Different Elements from Different Statutory Provisions. An uncommon one, but pops up occasionally. It’s basically where the elements of one crime – though from a different statutory provision – subsume the elements of the other crime. Might not qualify as a lesser-included offense since it isn’t always a “lesser” offense, but crimes of the same seriousness. See below for an example where all the elements of the more serious offense are contained in the less-serious offense. Example #1: Intimidation in the Second Degree and Menacing. State v. Black, 320 Or App 263 (2022) Example #2: Unlawful Use of a Vehicle and Possession of a Stolen Vehicle. State v. Noe, 256 P3d 166 (2011). But note the elements of UUV have changed in some circumstances, so this may no longer be true in all circumstances. Example #3: Murder with a Firearm and UUW with a Firearm. Murder and UUW would not merge, because UUW has an element murder does not (the use of a dangerous weapon). But the additional allegation of “with a firearm” (which is considered an element of the offense) may supply the missing elements and therefore compel merger. In theory, UUW could merge with other crimes where “with a firearm” is alleged (e.g., robbery in the first or second degree), as long as the other conditions are met (including same victim.) This may also depend whether the theory the state relies on for UUW includes “use or attempted use” of a dangerous or deadly weapon, or whether the state’s theory is exclusively “possession with intent to use.” The latter may be enough to defeat merger, since a person can use a weapon without possession it. Example #4: Criminal Mistreatment and Assault (depends on the theories involved. See State v. Smith, 229 Or App 518 (2009) Example #5: Identity Theft and Fraudulent Use of a Credit Card Weird one. All the elements of ID Theft (a C felony) are contained in FUCC (an A misdemeanor). But when they merge, they stay a felony. State v. Haddon, 286 Or App 191 (2017)
Defendant requests that the court vacate her convictions and sentences for misdemeanor fraudulent use of a credit card. We agree that the offenses merge into the more serious offense but describe the disposition more appropriately. State v. Cloutier, 286 Or. 579, 600, 596 P.2d 1278 (1979) (entry of conviction is for "the most serious of the offenses of which the defendant was guilty"). PRACTICE TIP: Argue that Cloutier is no longer good law and that it would violate vertical proportionality (State v. Simonson, 243 Or App 535 (2011)) to impose a felony sentence, when the “greater offense” is a misdemeanor. 2nd Theory of Mergerby: Ryan Scott • May 8, 2024 • no comments SECOND THEORY OF MERGER Multiple Counts involving (1) Same Criminal Episode, (2) Slightly Different Elements, (3) Same Statutory Provision Example #1: Two counts of theft in the first degree merge, even if the elements are different, as long as the other requirements are met, because different means of committing theft doesn’t indicate a legislative intent to reflect separate statutory provisions. State v. Slatton, 268 Or App 556 (2015). This can include, for example, theft by taking and theft by selling. Same is true for different counts of robbery in the second degree based on different theories (e.g., aided by another and purport to have dangerous weapon) or kidnapping, if the counts are based on different theories. Generally speaking, if the title of the crime is the same, then it will be from the same statutory provision, though not always. Different degrees of crime (i.e., first versus second degree) are generally not from the same statutory provision. If they are from the same statutory provision, the facts still need to satisfy all the other conditions required for merger (one criminal episode, one victim, no sufficient pause.) But be aware of this limitation to merger contained in ORS 161.067(3):
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Oregon Court of Appeals, April 24th, 2024by: Rankin Johnson KIDNAPPING - Sufficiency RIGHT TO COUNSEL - Burden of proof regarding prejudice DEFENSES - Self-defense DUII - FSTs as scientific evidence CIVIL COMPROMISE - Elements RIGHT TO DUE PROCESS - Procedural due process Oregon Court of Appeals, April 17th, 2024by: Rankin Johnson APPEAL AND REVIEW - New trial motions CLOSING ARGUMENT - Improper argument by prosecutor MOTIONS FOR JUDGMENT OF ACQUITTAL - Inferences CLOSING ARGUMENT - Improper argument by prosecutor CLOSING ARGUMENT - Improper argument by prosecutor SENTENCING - Eligibility for alternative programs SEARCH AND SEIZURE - Scope of inquiry following stop _________________________ |
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