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A Quickie Merger Analysis

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by: Ryan • May 22, 2011 • no comments

I'm continually updating my merger case law compilation. When it's slow, and there aren't new merger opinions, I try to improve readability. So I encourage people to check it out semi-regularly.

But one problem is that it may be too large. It's not exhaustive - it doesn't have every single merger opinion - but I realize nobody has time to sit down and just read the whole thing (although you should just once - some of it will surprise you).

So let me just do a quick post on one aspect of merger. Whenever I get a question from another attorney on whether two crimes merge, it almost always involve this type of analysis.

Assume two different crimes. They are related but not identical. Sometimes, they are so similar that it's almost impossible to commit one without committing the other. Do they merge?

To defeat merger, the state needs two things: (1) each crime must have an element - either explicitly or implicitly - the other does not and (2) each must be from a separate statutory provision. If the state can only satisfy one requirement, they merge.

In State v. Blake, the Oregon Supreme Court held that implicitly, all of the elements of Possession of a Forged Instrument are contained in Forgery I. It's not explicit, since there is no express "possession" required by Forgery I, but you can't commit the element of "uttering" without "possessing."

Because the state could not satisfy (1), they merged the two counts, and the court never had to address if they were from the same statutory provision.

Conversely, even though they have different elements, "robbery while purporting to be armed with a dangerous weapon" is from the same "statutory provision" as "robbery when aided by the actual presence of another person," even though they are in different subsections. State v. White 346 Or 275, 211 P3d 248 (2009). Therefore, they merge.

In State v. Cufaude, the COA reiterated the analysis for determining if two crimes come from the same statutory provision:

In White, the court reaffirmed that, to determine whether a single act violates two or more statutory provisions, a court must determine whether the legislature intended to create a single crime or two or more crimes. 346 Or at 280. That inquiry does not depend-at least not entirely-on the structural form that a criminal statute takes, although the use of a single section is one indication that the legislature intended to define a single crime. Id. Neither does the inquiry turn entirely on whether two or more charges are based on one or more statutes that address separate and distinct legislative concerns. Id. at 283. That is so because, as the court observed in White, "every statutory section that 'requires proof of an element that the others do not,' ORS 161.067(1), necessarily involves a distinct legislative concern-otherwise there would be no need for the additional element." Id. The court therefore clarified in White, that, "[A court views] the statute as a whole, looking to the text, context, and, when appropriate, legislative history of the statute. That analysis includes consideration of whether the sections, although addressing different concerns, also may address, on a more general level, one unified legislative objective." Id. at 283-84.

Under this analysis, we may be able to apply the "unified legislative objective" rule more broadly than it has been done before. Do PCS-meth and PCS-cocaine merge? Do the statutes address one unified legislative objective? That's only part of the analysis, but a large part.

Are Unlawful Use of a Weapon and Assault with a weapon from the same statutory provision? Cufaude hinted that they may be, but the argument hasn't yet been made to the COA (either unraised or, in one case, conceded by the defense). What is the purpose of both crimes? Do they have the same legislative objective?

I could go on and on, but the important thing to remember is that the state needs both (1) and (2) to keep crimes from merging.


Ryan Scott is a criminal defense lawyer in Portland. His firm's website is here.