Over the years, I have spoken quite a bit about the topic of merger, which in criminal defense means the entry of only one conviction despite multiple findings of guilt. My compilation of merger cases is here.
One of the things I stress is that defense counsel should figure out the potential for merger long before the client ever gets to sentencing. If a defendant is facing ten counts, the attorney's negotiating position is far better if he or she knows that, after trial, the defendant will only have a single conviction, even assuming the jury finds her guilty of everything.
Not only is the lawyer's bargaining position stronger, but knowledge of merger case law may tip the balance toward going to trial and therefore having a shot at complete success. For example, let's assume a defendant is charged with both unlawful use of a vehicle (UUV) and possession of a stolen vehicle (PSV), arising from a joyriding incident in which the defendant was driving. Perhaps the defendant believed he had consent to take the vehicle. If the defendant - who, for the purposes of this hypothetical, has no criminal history - ends up with two felony convictions, it will be ten years before he can expunge those convictions from his record. A single conviction for the unlawful use of a vehicle, however, would be expungeable in three years. The desire to avoid the long-term consequences of a felony would be a big incentive to take a plea that results in a single felony conviction, even if the defendant asserts that he is innocent. The risk of two convictions might be more likely than an outright acquittal on both counts.
However, if defense counsel believes that the two counts will merge into a single conviction, that may give an innocent defendant additional incentive to go to trial. The downside of losing, if the two counts merge, would be no worse than the plea offer.
But do UUV and PSV merge?
There is no case on point. The two counts arise from separate statutory provisions, which is usually enough to defeat merger, even if the crimes occurred simultaneously (which UUV and PSV usually do). But there is an exception, and that exception occurs when all the elements of one crime are necessarily included in the other. See the analysis in St v. Blake, ___ Or ___ (March 25, 2010)(holding that uttering a forged instrument necessarily requires possession of that same instrument; therefore, the crime of possession of a forged instrument merges into the crime of forgery in the first degree.)
Does use of a vehicle necessarily require possession of a vehicle? For example, can a person who is sitting in a vehicle as a passenger be said to be using the vehicle but not be in possession of it?
The first stage of this analysis is to decide what constitutes "use" of a vehicle.
ORS 164.135(1) provides, in part:
"A person commits the crime of unauthorized use of a vehicle when: "(a) The person takes, operates, exercises control over, rides in or otherwise uses another's vehicle * * * without consent of the owner[.]"
The Oregon Court of Appeals first interpreted ORS 164.135(1)(a) in State v. Macomber, 16 Or App 54, 56-58, 517 P2d 344 (1973), rev'd on other grounds 269 Or 58, 523 P2d 560 (1974), holding that the statute did not apply only to moving vehicles: "'exercise of control is not limited to a moving vehicle, for otherwise it would be largely synonymous with "operates," or covered by "riding."'" Id. at 57 (quoting People v. McCaleb, 25 NY2d 394, 399, 255 NE2d 136, 138, 306 N.Y.S.2d 889 (1969) (interpreting the New York provision from which the Oregon provision was taken)); accord, Commentary to Criminal Law Revision Commission Proposed Oregon Criminal Code, Final Draft and Report (July 1970), § 134, 142 ("The purpose of the language, 'takes, operates, exercises control over, rides in or otherwise uses,' is to prohibit not only the taking or driving of another's vehicle without permission but, also, to prohibit any unauthorized use of the vehicle.")
On the other hand, "mere entry" and "naked trespass" to the vehicle are not covered by the statute. State v. Douthitt, 33 Or App 333, 576 P2d 1262 (1978). In Douthitt, the defendant broke into a car and attempted to steal items from it. The court held:
"that the new statute requires that the actor manifest an intent to deprive the rightful possessor of possession or to otherwise interfere with the rightful possessor's use of the vehicle, but simply does not cover a naked trespass to the vehicle[.] * * * In this case the only acts affecting the vehicle were opening the locked door and rifling the glove box. Considered as separate acts or a single act, they do not constitute a sufficient exercise of control over the vehicle such that defendant has manifested an intent to affect the rightful possessor's relationship to the automobile, i.e., there was no intention to use the vehicle."
33 Or. App. at 338. [Emphasis added.]
In State v. Howell, the "defendant had the title to the car in his pocket and the spare keys in his lap. In addition, a garage door opener, previously rendered ineffective by the victims' neighbors, and a map from the glove box lay at defendant's disposal as if he intended to use them. Defendant was more than a mere trespasser. There was evidence from which the trial court could find that he intended to "deprive the rightful possessor of possession" of the vehicle. Id. Consequently, the trial court properly found that defendant, without the consent of the owner, exercised control over the victims' vehicle within the meaning of ORS 164.135." State v. Howell, 183 Or App 360, 367 (2002).
That's "use." What about "possession"? Two relatively recent Oregon Supreme Court cases discuss possession generally.
As the text of that definition makes clear, a person may possess property in one of two ways. He or she may "have physical possession" of the property, which customarily is referred to as actual possession. See State v. Connally, 339 Or 583, 591, 125 P3d 1254 (2005) (discussing actual and constructive possession in construing city ordinance). Alternatively, even if a person does not have actual possession of the property, he or she may have constructive possession of it if the person "otherwise * * * exercise[s] dominion or control over [the] property.
State v. Fries, 344 Or 541, 545 ( 2008)
The Fries court further summarized the case law:
The statutory definition of actual possession follows the generally understood use of that concept in the criminal law. See Denton and Denton, 326 Ore. 236, 241, 951 P.2d 693 (1998) (recognizing that statutory context includes preexisting common law). In State v. Oare, 249 Ore. 597, 599, 439 P.2d 885 (1968), for example, the court explained that a person who had a narcotic "upon his person" would actually possess it. Similarly, in State v. Hall, 269 Ore. 63, 65-66, 68, 523 P.2d 556 (1974), the court held that a defendant who sat on a bag of marijuana when the police entered an apartment occupied by several people and then threw the bag to the ground disclaiming any knowledge of its contents actually possessed the marijuana. Those authorities confirm that "to have physical possession" of property means actual physical control of property, although some physical contacts with property may be so momentary or fleeting that they are insufficient as a matter of law to establish physical control. See Wayne R. LaFave, 1 Substantive Criminal Law § 6.1(e) at 432-33 (2003) (summarizing generally understood use of possession in the criminal law).
State v. Fries, 344 Or 541, 546-547 (2008) [Emphasis added.]
In contrast, the Oregon Supreme Court found no possession of a firearm when a houseguest left the gun for a brief moment on the kitchen counter of the defendant's home. State v. Casey, 346 Or 54, 61 (2009)
The Casey court, however, did cite State v. Downing, 185 Or 689, 695-96, 205 P.2d 141 (1949) for the holding that the jury reasonably could find that the defendant and another person jointly possessed a stolen watch that defendant knew was in their shared living area and that had been acquired through their joint efforts.
I am not going to claim the answer is obvious, but in light of the requirement that "use" of a vehicle requires an intent to deprive the rightful owner of a possessory interest, and that possession itself can be very broadly defined, it is hard to imagine a scenario in which a defendant who uses a vehicle isn't also in some form of constructive possession. Under Blake, if "use" always implicates "possession," the two counts merge, despite being from different statutes.
We are back to the defendant who has good reason to go to trial but is afraid of the consequences of two felony convictions. Right now, no attorney can guarantee merger of UUV and PSV, but the possibility of merger, in light of the analysis above, should be part of the analysis. If the potential for merger inclines the defendant towards trial, and he ultimately prevails, you could say that merger - a strictly sentencing issue that has no direct relationship to guilt or innocence - nevertheless saved the defendant from any conviction at all.