Merging Rob I and Rob II
by: Ryan • May 1, 2015 • no comments
The Court of Appeals recently issued an opinion, State v. Burris, that upheld the trial court's failure to merge a Rob I conviction and a Rob II conviction. It's a sound decision and I don't find fault with it, but I am writing because I worry that people think the opinion is broader than it really is.
The defendant in Burris argued that Rob I would actually merge into Rob II when the gun minimum was attached to both counts. (yes, the argument was that the greater offense would merge into the lesser offense.) The court rejected that argument because Rob I -- when the weapon is a firearm -- requires a loaded firearm, and Rob II -- when paired with the gun minimum -- requires only a firearm, and it doesn't even need to be operable, much less loaded. Because the Rob II conviction also alleged "aided by another person actually present," then each crime had an element the other did not. (Note that defendant was charged with both theories of Rob II, but when the trial court merged them, the only theory that defendant was convicted of was "aided by another person actually present.")
But if you change the charges slightly, then a Rob II would merge into the Rob I. If both counts allege the gun minimum, and the Rob II is charged as "purporting to be armed with a deadly or dangerous weapon," the lesser-included offense would merge into the greater offense because -- thanks to the gun minimums -- all the elements of Rob II are contained in Rob I.
The Burris opinion doesn't say this, but we know it works out that way because the COA has previously held that, when the gun minimum is added, Rob II (charged as "purporting") is a lesser-included offense of Rob I. State v. Riehl, 188 Ore. App. 1 (2003).
