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21 Findings of Guilt; One Conviction

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by: Ryan • May 2, 2012 • no comments

Today's COA opinion in St v Torres demonstrates the importance of merger. 21 guilty verdicts for felon in possession of a firearm -- based on 21 firearms in a gun safe -- result in a single conviction. Leave aside the potential for less jail time, misdemeanor reduction, expungement, and so on, one conviction will be much easier to explain to future employers or landlords than a criminal record that makes the defendant look like Nicholas Cage in Lord of War.

But the opinion is important for a lot of reasons. First, I want to note that it was a state's appeal, and want to take an opportunity to congratulate the appellate and trial attorneys, who did excellent work.

Secondly, I recommend the opinion for its discussion of "victim." The opinion is important because it reaffirms that the definition of "victim" changes depending on the context. Do not be impressed when a prosecutor argues that the victim is whoever he or she says it is. As this case indicates, it's far more complicated than that, and the definition of victim in the context of merger is rooted in the language and legislative history of the specific criminal statute at issue.

Third, compare this case to State v Bell, where the COA upheld the trial court's decision not to merge 3 counts of felon in possession. In Bell, the court found sufficient evidence of a sufficient pause between offenses, and that pause was enough to defeat merger. I have serious complaints about the Bell opinion (for aspects of it that I like, see this post ).

When you've got that situation, where the judge might be inclined to make findings of a sufficient pause between counts that would otherwise merge, then you need to argue that a finding of a sufficient pause is a jury question, under State v. Blakely. Further, if it is a Blakely question, the state can't raise it if it didn't give proper notice by the statutory deadline.

Fourth, the same rule holds true if the prosecutor urges the judge to make findings of separate criminal episodes, in an effort not only to defeat merger but also to enhance the defendant's sentence. As noted in this post , the state has the burden to prove separate criminal episodes in those cases where the dates in the indictment overlap, and consequently, that makes that finding a jury question. You should definitely keep this in mind when the state encourages the judge to make findings of separate criminal episodes on multiple counts of Encouraging Child Sexual Abuse, when such counts followed the execution of a single search.

Fifth, speaking of ECSA, you should keep today's opinion in mind when arguing that the victim of ECSA is the public at large, not the child in the photo, who (1) may not even be alive anymore, if the victim was taken 100 years ago and (2) shouldn't be seen as a victim every time the photo is viewed, otherwise he or she is victimized everytime the jury or the police or the prosecutor look at the photo. Note that the crime itself is called "Encouraging Child Sexual Abuse," because it's intended to eliminate the market for such photos and videos, that is, to protect the public at large from future abuses. See this post for more details.

Here's part of what the Torres court said about identifying the "victim" as the public at large:

The court concluded that, "in enacting ORS 166.270, the legislature acted within its proper authority to restrict the possession of arms by members of a group whose conduct demonstrates an identifiable threat to public safety." Id. at 679 (emphasis added). It follows that the "class of persons whom the legislature intended to directly protect by way of the criminal proscription" on the possession of firearms by felons in ORS 166.270 is the public at large. Moncada, 241 Or App at 212; cf. Goodness v. Beckham, 224 Or App 565, 576, 198 P3d 980 (2008) (victim of initiating false report, ORS 162.375(1), is the public, not the person about whom the false report was initiated).

Other crimes where the victim may be the public at large might be: promoting prostitution, interfering with a making a report, and identity theft, although that argument has been rejected by the COA.

All in all, a good opinion from the COA today, and one that defense lawyers should be prepared to use in a variety of circumstances.