What are the open merger questions?
by: Ryan • May 5, 2014 • no comments
Here's a quick list -- in order of likelihood of success, in my opinion -- of some still-open merger questions.
(1) Rob I (possession of a deadly weapon) should merge with Rob II (representation of a dangerous or deadly weapon) IF the Rob I also has the gun minimum attached. The allegation of the gun minimum makes the Rob II a lesser-included of Rob I (St v Riehl). And if there was any doubt, St v Flores holds that the gun minimum is an element of the aggravated offense. Putting those two together should be more than enough to get the counts to merge into a single conviction.
(2) PCS should merge into DCS IF "possession of substantial quantities of PCS" is alleged as an enhancement of DCS. The state will argue that, unlike the gun minimum, the enhancement factor here is not an element. Logically, however, the distinction makes no sense under either the Oregon or the United States Constitution. (See State v. Wedge.) If (1) above is argued and prevails, then this one should follow with a little push. The beauty of this argument is that it doesn't require the court to overrule St v Sergent.
(3) Different counts of ECSA (child porn) should merge with each other IF the state fails to show the children were alive at the time the porn was downloaded or possessed AND the counts arise from the same criminal episode. The former requirement is necessary to defeat any claim there are separate victims and the second is needed in any merger case. But the second is quite complicated as well, and if you want a thorough explanation of the argument, let me know.
(4) Multiple counts of ID Theft should merge IF the state fails to showing real living victims AND the counts arise from the same criminal episode. Okay, this one is probably more likely than (3), but I don't feel like cutting-n-pasting.
There are a few more issues. Some are already under advisement (are separate animals separate victims?; merging two counts of attempted murder into one count of attempted aggravated murder (based on an attempt to kill two people)). Some are fairly obscure. But there aren't that many left, not after the high number of merger opinions (most of them favorable) from the appellate courts during the last seven years.
