Merger for Seniors: recklessly endangering, assault and car accidents
I wouldn't necessarily call this a cutting-edge legal argument, even though there's no appellate case on point, only because I don't know that it comes up very often. Nevertheless, it requires a more careful legal analysis than merger normally requires.
Here's the issue. Does recklessly endangering merge into one particular type of assault III?
Under ORS 163.165(1)(c), a conviction for assault in the third degree required that the jury find the defendant (a) was reckless, (b) used a dangerous weapon, (c) was extremely indifferent to the value of human life and (4) caused injury (but not serious physical injury).
Most often, this comes up in the context of DUII accidents. Bad driving, bad history, but injury -- thankfully -- minor.
Let's focus on a car accident. Though it didn't cause a serious physical injury, to be a dangerous weapon, the vehicle must be capable of causing serious injury in the manner it was used or threatened to be used. Is it possible to commit such an offense and not also be guilty of recklessly endangering another person, which requires only that the defendant recklessly engage in conduct which creates a substantial risk of serious physical injury to another person? If it is impossible to commit the former without also committing the latter, do the two guilty verdicts merge into a single conviction?
We can assume that a charge of assault in the second degree which includes the elements of recklessly causing serious physical injury (in a manner exhibiting extreme indifference to the value of human life) would merge with the charge of recklessly endangering another person, since all of the elements of recklessly endangering another person are subsumed in the greater offense. ORS 163.175 (defining assault in the second degree).
The same can be true for assault in the third degree, but it is not as self-evident. Assume, as here, that the elements of assault in the third degree include: (1) a reckless mental state and (2) the use of a dangerous weapon. ORS 163.165(1)(c). A dangerous weapon” is defined at 161.015(1) as:
(1) “Dangerous weapon” means any weapon, device, instrument, material or substance which under the circumstances in which it is used, attempted to be used or threatened to be used, is readily capable of causing death or serious physical injury.
In other words, assault in the third degree, when it involves the reckless use of a weapon readily capable of causing death or serious physical injury in the manner in which it is used, necessarily puts the victim at risk of serious physical injury.
This is true even when the injury that is actually inflicted on the victim is not serious. Unlike assault in the second degree, assault in the third degree does not require that the defendant cause serious physical injury. But it does require that the victim is put at substantial risk of serious injury from the dangerous weapon. A weapon that is readily capable of causing death or serious physical injury in the manner in which it is used certainly creates just such a risk.
Consequently, a defendant who commits an assault in the third degree by recklessly using a dangerous weapon – in addition to actually causing an injury -- has also committed all of the elements necessary to the crime of recklessly endangering another person, i.e., reckless behavior that puts the victim at substantial risk of serious physical injury.
Because all of the elements of recklessly endangering are contained within this particular theory of assault in the third degree, the former is a lesser-included offense of the latter.
What makes this argument more complicated is that it requires an analysis that encompasses the "elements" of dangerous weapon. But given that they are explicitly required to be proven just as any other element of that version of assault III can be proven, that shouldn't be an obstacle in any way.