The Merger Argument Even I'd Forgotten About
In these essays, I haven't spent much time focusing on whether lesser-included offenses merge with the greater offense. They do. Pretty simple. Sometimes what we assume is a lesser-included offense really isn't (assault 3 isn't always a lesser-included of assault 2, for example), but no one really needs my help in figuring that out.
Except. . . . there's actually a great merger argument that comes up in less-than-obvious situations involving lesser-included offenses.
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).
Everyone, myself included, forgets about (2). When does (2) arise but (1) doesn't?
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.
In other words, 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.
Where else does this occur? Well, if the state has alleged DCS (or MCS) as a commercial drug offense, and one of the 3 CDO factors is "the defendant possessed a substantial quantity of [the controlled substance]", then the elements of PCS are now expressly set forth in the DCS and the MCS. Thus, PCS is a lesser-included. This would be a big deal in DCS-mj cases, where a single conviction (following merger) would expedite the waiting period necessary for expungement.
(This is a separate argument than the assertion that MCS and PCS merge anyway, in light of the State v. Blake analysis. Note that MCS does not have the obvious hurdle with merger that DCS does.)