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Same Theory

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by: Ryan • July 15, 2012 • no comments

Assume a defendant is convicted of three counts of sexual abuse in the first degree, based on a single incident of touching the breasts of a 13 year old and sliding his hand down and touching her buttocks and genitalia. For the purposes of this hypothetical, assume it is all over the clothes. Furthermore, all three counts are based on the age of the victim. Do the 3 counts merge into a single conviction?

Almost certainly yes. Alas, this is a simple issue with an unfortunately complicated history.

The reason they merge is that multiple counts of the same crime, charged under the same theory, involving the same victim, all merge unless there is a sufficient pause between offenses. Under the current case law, a hand sliding down from the breasts to the genitalia would not constitute a sufficient pause to prevent merger.

So, we've seen this in all sorts of crimes. Multiple counts of felon in possession (21!) merged in St v. Torres this year. Multiple counts of ID theft (same victim) all merged last year or the year before. And many more examples can be found in the merger compilation on this website.

It's simply no different for multiple counts of sex abuse (same theory, same victim, insufficient pause).

The complicated history is this: the COA held such counts merge in an old case called St v. McCloud out of Multnomah County. But then the Oregon Supreme Court issued an opinion on merger that they have since disavowed, which held that these counts only "merge for sentencing." Before that case was disavowed, the McCloud court issued McCloud II, holding that the multiple counts of sexual abuse only merge for sentencing.

Because McCloud II hinged, quite explicitly, on an OSC opinion that has since been disavowed (and a concept -- merger for sentencing -- which the court has repeatedly said does not exist), McCloud II is not good law. But it does complicate the argument to the trial court, if the trial court is unfamiliar with the developments in merger case law.

There is one more issue to keep in mind. What if there is a real factual dispute whether or not a sufficient pause took place between touchings? The judge will have every incentive to say there was such a pause, and therefore the counts don't merge. However, it is very possible that the existence of a sufficient pause is a jury question (i.e., a Blakely question), and if the jury was never asked to make that finding, the judge is not allowed and the default position favors the defendant.

We may be years away from getting an appellate decision on that issue, however.