when Rob II merges into Rob I
by: Ryan • October 30, 2013 • no comments
After today's Flores opinion, there can be no real doubt that Rob II will sometimes merge into Rob I.
Robbery II (representing that one is armed with a dangerous or deadly weapon) is not a lesser-included of Robbery I (armed with a deadly weapon), because Robbery II has an element ("representing") that isn't in Robbery I (where a person does not need to display the weapon to be guilty). But in State v. Riehl, 188 Or App 1 (2003), the court added a caveat: if the state has also alleged "used or threatened to use a firearm" as part of the Rob I, Rob II is now a lesser-included of Rob I.
A crime is a lesser-included offense of another crime as a matter of law if either of two circumstances exist: "(1) the elements of the lesser offense necessarily are included in the greater offense because the elements of the former are subsumed in the latter; or (2) all of the elements of the lesser offense are expressly set forth in the accusatory instrument." State v. Lee, 174 Or App 119, 125, 23 P3d 999, rev den, 332 Or 559 (2001).
Before Flores, you would have argued perhaps that the allegation of the enhancement factor "used or threatened to use a firearm" means that the missing element has been "expressly set forth in the accusatory instrument." Lee, supra.
Post-Flores, it isn't reasonably in dispute that "the elements of the lesser offense necessarily are included in the greater offense [aggravated Rob I] because the elements of the former are subsumed in the latter."
It's a small consolation when the defendant is serving 90 months in prison, but one less conviction is always a good thing.
