Impact of gun minimum on merger
by: Ryan • July 7, 2015 • no comments
On the merger page of Library of Defense, you'll find this paragraph:
- Does Robbery II merge into Robbery I? In State v. Cortes, 235 Or App 181 (April 28, 2010), the COA declined to answer that question. But in State v. Colmenares-Chavez, the Court of Appeals said, no, they are not from the same statutory provision and therefore they do not merge. It is worth noting that Rob II (purporting to be armed with a dangerous or deadly weapon) is not automatically a lesser-included of Rob I (armed with a deadly weapon), but it can be if the state has also charged the gun minimum as part of the Rob I. State v. Riehl, 188 Ore. App. 1 (2003). So if the gun minimum is charged, that specific theory of Rob II is a lesser-included and therefore should merge into Rob I. [Emphasis added.]
In State v. Flores, the Court of Appeals held that by adding the gun minimum to a charge of felon in possession (i.e., felon in possession of a firearm with a firearm), the additional charge of Unlawful Use of a Weapon (UUW) was now a lesser-included offense and the two counts merged.
Just last week, the Court of Appeals addressed whether, in a case with facts similar to Flores, the addition of the gun minimum should result in merger with the lesser-included UUW under a plain error analysis. Since Flores had already been decided, you'd think the answer would be yes, but the AG's office made a different argument than that made in Flores, and the COA decided the answer wasn't obvious.
What was the new argument? Two, actually. The first was the the gun minimum ("the defendant used or threatened the use of a weapon") did not necessarily require use against another person, as UUW explicitly does. I actually think the gun minimum does require use against another person, albeit implicitly, but that's a question the COA will need to answer down the road. It will involve legislative history, context, etc., but I'm inclined to think we will win that.
The second argument the AG's office made was that the gun minimum did not require that the use be unlawful. In other words, if you are a felon in possession, and you lawfully use the gun in self defense, you could still be convicted of the gun minimum, because the gun minimum only requires use, and the only thing that needs to be unlawful is the underlying offense. I'm not too confident of the state winning that argument either.
But what's worth noting is that the state is taking a different position than it did in Riehl. Riehl wasn't a merger case; the defendant objected to the judge giving the lesser-included instruction of Robbery in the Second Degree, when the state asked for it on the grounds that the addition of the gun minimum made Robbery in the Second Degree a lesser-included offense of Robbery in the First Degree. The prosecutor obviously had some doubts whether he could prove the greater offense beyond a reasonable doubt.
Does this mean that the state's position is that Riehl was wrongly decided, even though the Riehl court agreed with the state? Leaving aside whether or not it's something the defendant should object to, the state's position would now open the door to the defendant objecting to the lesser-included offense of Robbery II when the state may not have been able to prove that the firearm was loaded.
