A Very Obscure Merger Issue
by: Ryan Scott • August 18, 2026 • no comments
Your client is charged with the same crime twice, both occurring almost simultaneously and involving the same victim. They merge, right? Normally yes, but in one crime, your client is charged as a principal. In the other, an accomplice. Does that change the analysis?
(When might this occur? Two guys shoot at the victim. Both miss and both are charged with two counts of UUW, because each discharge is a separate crime. They are each charged with two, because when defendant A discharged the firearm, he was a principal for UUW. When he encouraged defendant B to discharge the firearm, he was an accomplice.)
The following analysis is taken from a brief by David Ferry, although it has been modified, including some redactions.
II. ORS 161.067(1) does not prevent merger because defendant violated only one statutory provision.
Under ORS 161.067 (1), for a single criminal episode to constitute multiple statutory violations, the following circumstances must exist: “(1) [the] defendant must have engaged in acts that are ‘the same criminal conduct or episode’; (2) [the] defendant’s acts must have violated two or more ‘statutory provisions’; and (3) each ‘statutory provision’ must require ‘proof of an element that the others do not.’” State v. Parkins, 346 Or 333, 348, 211 P3d 262 (2009) (quoting State v. Crotsley, 308 Or 272, 278, 779 P2d 600 (1989)).
Here, as noted above, this case involves only a single criminal episode. Moreover, each of the paired counts—Counts 2 and 3, and Counts 4 and 5—involve only a single statutory provision.
The state argued below that despite the singular nature of the indictment’s charges, Counts 3 and 5 actually involved separate violations of the aid and abet statute (ORS 161.155) rather than the substantive criminal statutes. But Oregon’s appellate courts have long held that the aid and abet statute does not create a separate basis for criminal liability. State v. Cobb, 224 Or App 594, 597-98, 198 P3d 978 (2008).
In Cobb, the defendant argued that, because he was convicted under an aiding and abetting theory, he was not convicted of the substantive crime of second-degree robbery, which was required for application of the mandatory minimum sentence set out in ORS 137.700. Id. In rejecting that argument, this court explained that aiding and abetting is merely a “theory of criminal liability, not a separate offense.” Id. at 598. Accordingly, although ORS 161.155 was used as a basis for holding the defendant liable for the conduct of the codefendant, “the offense for which he was convicted is second-degree robbery.” Id.
Thus, ORS 161.067(1) does not prevent merger in defendant’s case.
In other contexts, Oregon courts have explained that, when determining whether a defendant violated multiple statutory provisions, the crux of the issue is whether the legislature intended to create multiple crimes. State v. White, 346 Or 275, 280, 211 P3d 248 (2009). Typically, that rule is applied when a single statute provides different means of committing a crime—when the crime can be committed in different ways by satisfying different elements. Thus, for purposes of the merger statute, when a criminal statute merely provides different methods or theories of liability, there remains only one offense. Only when a statute addresses different risks and harms in separate provisions will there be separate statutory provisions for application of ORS 161.067(1). Compare State v. Johnson, 174 Or App 27, 32, 25 P3d 353 (2001), rev den, 334 Or 492 (2002) (holding that the paragraphs setting out different ways of committing first-degree robbery are separate “statutory provisions” for purposes of merger of convictions because they address different risks of harm), with State v. Kizer, 308 Or 238, 243, 779 P2d 604 (1989) (stating that paragraphs in the forgery statute constitute a single “provision”), and State v. Miller, 309 Or 362, 369, 788 P2d 974 (1990) (holding that the paragraphs in the DUII statute are alternative methods of proving one crime).
Based on the law, then, the state’s novel argument below suggesting that a different theory of liability—aid and abet liability—created a different set of elements or a separate statutory provision for purposes of ORS 161.067(1) is unavailing.
