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2nd Theory of Merger

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by: Ryan Scott • May 8, 2024 • no comments


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):

Each method of engaging in oral or anal sexual intercourse as defined in ORS 163.305, and each method of engaging in unlawful sexual penetration as defined in ORS 163.408 and 163.411 shall constitute separate violations of their respective statutory provisions for purposes of determining the number of statutory violations.