Two Open Merger Questions You Should Win Easily (and one that's a little tougher)
by: Ryan • December 8, 2010 • no comments
UPDATE: Well, maybe not so easily. The COA held that - in apparent contrast to St v. Duffy and St v Eastman/Kovach - that there is a real victim of felony hit and run, and therefore multiple victims would mean the counts do not merge. But one beneficial side effect may be that felony hit and run Is Felony Hit and Run Now Compromisible? .
We have had a slew of merger cases in the last year that have held the same thing: multiple counts of the same crime, involving the simultaneous possession of multiple things, merge into a single count, as long as there is no more than one actual victim. What does that mean in real life? Multiple counts of ID Theft, arising from the simultaneous possession of multiple IDs from the same person (i.e., you have his wallet) merge into a single count. Multiple counts of felony possession of a forged instrument based on the possession of multiple counterfeit twenties merge into a single count.
One open question is: do multiple counts of felon in possession, based on the simultaneous possession of multiple firearms, merge into a single count? Yes. All of the requirements of merger are met. (There's old case law that suggests the answer is "not always" but it was published well before the quiet revolution in merger law we've experienced.) 10 guns, one felon, one conviction. You should win this easily.
Second: do multiple counts of felony hit and run from a single car accident merge into a single count? Again, the answer is a very easy yes. No, it's not possession of contraband, but the rule is the same. The crimes occurred simultaneously, it's multiple counts of the same crime and, most important, it's one victim: the state. According to established case law, the injured person is not a victim of Felony Hit and Run. (Which is why you can't civilly compromise a felony hit and run.)
Here's a trickier one, but I think you'll prevail on this as well. I'm thinking about it because it's come up twice in my practice in the last three months. Cops raid simultaneous marijuana grows in different houses that are miles apart. Defendant charged with MCS/DCS/PCS for each house.
Well, it may be counter-intuitive but it's almost certainly true, every MCS merges, every DCS merges and every PCS merges. (Whether the PCS or DCS or MCS merge is a different question or rather, many different questions.) Again, the analysis is simple: multiple counts of the same crime, committed simultaneously, and the only "victim" is the state of Oregon. I admit this is a harder sell, if the judge won't sit down and follow the analysis, but the analysis is solid.
Not only that, but there's arguably a double jeopardy problem if the grows are discovered at the same time, in different counties, and one county is prosecuted first. The next county might be foreclosed in a way no one else will ever see coming.
All of the case law supporting the arguments above can be found in the merger memo on this website. Remember, just google "Ryan Scott merger" next time you have a question about merger. That last argument, I haven't written it up yet, but given the right case, I will. In the meantime, the thing to remember about open merger questions is this: it's like math, in the sense that you can almost always sit down and get the right answer, if you plug in the right formula. The problem isn't that the formula is hard. The problem is remembering to ask the question.
