The Next Big Merger Issue: ECSA and ID Theft
There have been some great merger developments in the past five years. And there are a few open questions left, though not many. But this is the big one: since merger can be defeated by a demonstration of separate victims, what about those crimes (ID Theft, ECSA) where sometimes the victim is a real person and sometimes it's the state.
The appellate courts have never directly confronted the issue. Actually, it's arguably three issues, if you break it down into the component parts, and I submit none of those three issues is reasonably disputed. But so far the COA hasn't had a reason to put the pieces together yet.
The first issue -- or really, the first principle -- is that some crimes can contain the following alternative: that sometimes the victim in a particular crime is a specific, identifiable person and sometimes it is the state. That was the holding in State v. Sumerlin, 139 Ore App 579, 584, 913 P2d 340 (1996), which cited legislative history that says the recklessly endangering statute "covers potential risks as well as cases where a specific person is within the zone of danger." 139 Or App at 587. The Sumerlin court essentially held that a single statute could intend both that a victim was a discrete and actual person or the public at large.
This principle is self-evidently true in crimes such as Identity Theft. The crime of Identity Theft can implicate a real, identifiable victim -- the person whose identity is taken. State v. Mullen, 245 Or App 671 (2011), rev denied, 352 Or 25, 281 P3d 261 (2012). But Identity Theft can also involve the theft of an identify of a person who is "imaginary" (ORS 166.800(4)(a)), and it is axiomatic that imaginary people cannot be victims. Self-evidently there are times when the victim of Identity Theft is the public-at-large.
Which brings us to the second principle that presumably is not in dispute, which is that persons who are dead prior to the commission of a crime cannot be victims of that crime. For example, if child pornography that depicted an adolescent Abraham Lincoln was duplicated in 2013, then it is self-evident that Mr. Lincoln is not victimized by the duplication of those images, having been murdered more than 100 years before. This is a silly but not a frivolous example: it can be safely assumed that the electronic images viewed today will still be viewed one hundred years from now. Inevitably, today's victims will inevitably be long-dead when the images are seen on the 22nd century's version of a computer. If dead at the time of when the images are downloaded -- that is, if dead when the crime is initiated -- then those persons are not victims of that particular crime, and therefore the only victim is the state.
I'm waiting for the day when someone with a stack of forged $5 bills is charged with Identity Theft for misuse of Lincoln's personal information (his name and/or image).
Based on those two principles, it can be safely asserted that - notwithstanding State v. Reeves, a case which held that the children in the photos in an ECSA charge are victims - the possession or duplication of child pornography does not always involve a "revictimization" of the original victim, because there is not always a living victim to revictimize, and therefore the crime of Encouraging Child Sexual Abuse does not always have a victim.
State v Reeves, 250 Or App 294, 280 P3d 994 (2012), rev denied, 352 Or 565 (2012) ("We agree with the trial court that each duplication of the visual recording 'constitute[s] a revictimization' of the child depicted. The specific harm addressed by ORS 163.684 is the proliferation of such depictions of child abuse." Id. at 310-311. [Bold added.])
The third principle is simply that it is the state's burden to prove the existence of a separate victim, and if they fail to make that showing, there is no separate victim as a matter of law, and thus ORS 161.067(2) is not an obstacle to merger. See State v. Westbrook, 224 Or App 493 199 P3d 343, vac'd on other grounds, 226 Or App 462, 204 P3d 116 (2009) ("The problem with the application of Article I, section 44(1)(b), under these circumstances is, as defendant noted in the trial court, that the indictment did not allege (and defendant did not admit) that the relevant crimes involved separate victims.")
In most cases of ECSA (and many cases of ID Theft), there will be no showing that the people depicted in the relevant images were alive when the images were downloaded, in the case of ECSA, or actual, non-imaginary people, in the case of ID Theft. Absent such a showing, there can be no showing that they were in fact separate "victims," because it is impossible, as a matter of law, for the deceased to be revictimized by downloading that occurs after their passing or an imaginary person to be injured by, well, anything. Without such a showing, and without evidence of a sufficient pause or separate criminal episodes, all of the counts from the same criminal episode should merge into a single conviction.