Revisiting merger of racketeering with its predicate offenses

This wikilog article is a draft, it was not published yet.

by: Ryan • December 1, 2014 • no comments

In my previous discussion regarding whether racketeering should merge with predicates which -- in addition to being charged separately -- are specifically set forth within the racketeering count, I analogized with burglary (premised on an intent to commit rape in the third degree) and attempted rape in the third degree. I argued that they would merge because the burglary -- as charged -- included all the elements of attempted rape. But I was unaware of any cases that said so.

How about a different analogy? One that, like burglary and racketeering, can rely on predicates. I suggest attempted aggravated murder, where the predicate is one of many possible felonies? And yes, there is a case exactly on point. And despite my reputation for knowing merger, I hadn't heard of the case until today.

State v. Avritt.

From the opinion:

Defendant appeals a judgment of conviction on one count of attempted aggravated murder, ORS 163.095; one count of first-degree assault with a firearm, ORS 163.175; one count of first-degree burglary, ORS 164.225; and one count of unlawful use of a weapon, ORS 166.220. He argues that the trial court erred in: (1) denying a demurrer to one count of the indictment; (2) refusing to deliver a requested jury instruction; (3) failing to merge the attempted aggravated murder and burglary convictions; and (4) delivering an "acquittal first" instruction. The state concedes the third assignment.

Defendant's argument

Defendant argues that the trial court should have merged the convictions for first-degree burglary and attempted aggravated murder. Defendant reasons as follows: He was charged with attempted aggravated murder, which is attempted intentional or felony murder committed under circumstances that the legislature had determined warrants enhanced penalties. In this case, he was charged with attempted aggravated murder based on his attempted homicide during the commission of a burglary. He argues that a defendant cannot be punished for both felony murder and the underlying felony, so it necessarily follows that a defendant likewise cannot be punished for both attempted aggravated murder based on attempted felony murder and the underlying felony.

State's response

The state contests defendant's reasoning, arguing that separate convictions may be entered for multiple crimes committed in the same criminal episode as long as each crime contains an element that the other does not. In this case, the state argues, it does not necessarily follow that the crimes of attempted aggravated murder and first-degree burglary must merge, because the crime of attempted aggravated murder does not require that the underlying felony actually have been completed. ORS 163.115(1)(b) (requiring the state to prove that a defendant attempted to kill another "in the course of and in furtherance of the crime the person is * * * attempting to commit" (emphasis added)).

The conclusion

It is not necessary to resolve that question, however. In this case, the trial court specifically instructed the jury that it could not find defendant guilty of attempted aggravated murder unless it first found him guilty of the completed crime of burglary. The prosecutor did not object to that instruction. The state concedes that, as a result, for the purposes of this case, the crimes of attempted aggravated murder and first-degree burglary do merge. We accept that concession.

Setting aside the completed v. inchoate issue, and keeping in mind the wonderful holding in St v. Fujimoto that said predicates can all merge with the greater offense even if, because of separate criminal episodes and separate victims, they don't merge with each other, I think merger of racketeering and its predicates is getting more and more likely.