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Assume a statute says either party can do X. That means you can do X, right?

Maybe. Some statutes are very poorly drafted, and what the statute says you can do isn't exactly what the legislature intended when they passed the statute.

On April 11th of this year, the Oregon Supreme Court dealt with this in the context of felony computer crime. The case was State v. Azar. This statute is very broadly written. And it was written in the mid-80s, when the legislature would have had no understanding of how computers would be a part of our daily lives forty years later. So while it's true that the legislature will sometimes intend to address an issue with a statute that covers far more ground than the specific issue they are trying to address, nevertheless, it's hard to argue that they intended it to cover ground they couldn't even imagine.

Consequently, there are times when it is necessary to look at the legislative history to determine whether the legislature in fact intended something far less than the face of the statute would seem to allow. To put it another way, if certain behavior appears to be criminal based on the face of the statute, sometimes you have to look below the surface to see if that behavior is in fact what the legislature intended to make criminal.

We resolve that question under the framework set out in State v. Gaines, 346 Or 160, 206 P3d 1042 (2009). Our goal is to determine the intent of the legislature that enacted that provision. Id. at 171. In making that determination, we consider the disputed statutory text in context, together with any available legislative history that we find helpful. Id. at 172. If a statute's intended meaning remains unclear to us following our examination of its text, context, and legislative history, we may turn to general maxims of statutory interpretation for additional guidance. See, e.g., Chaimov v. Dept. of Admin. Services, 370 Or 382, 398 n 7, 520 P3d 406 (2022) (noting limited circumstances in which it may be appropriate for courts to consider general maxims of statutory interpretation).

Azar at ____.

As you may note, Gaines was passed in 2009. Prior to then, if the statute wasn't facially ambiguous, you couldn't dive into the legislature history. You were stuck with the face of the statute.

Getting back to my original question. Statute says you can do X. But whether you can do the specific thing you want to do, you have to ask yourself, is this specific thing what the legislature intended to allow you to do?

Which brings us to the child hearsay exception to the hearsay rule.

FOURTH THEORY OF MERGER

Lesser-Included Offenses

This has a lot of overlap with the Third Theory of Merger. Examples #3 and #4 immediately above would also arguably fall into this section, but generally when we think of lesser-included offenses, we think of assault IV as a lesser-included of assault III or assault II for example.

A crime is a lesser-included offense if it includes all but one or two of the elements of the higher offense and does not contain any additional elements.

Generally, robbery in the second degree (purporting to have, for example, a firearm) is not a lesser-included offense of robbery in the first degree (armed with a deadly weapon) because the former offense has an element the latter offense does not (that is, displaying or pretending to display a dangerous weapon). But robbery in the second degree might be converted into a lesser-included offense if the robbery in the first degree count includes the additional allegation of “with a firearm.”

Example #1: Reckless burning can be a lesser-included offense of arson. State v. Leckenby, 200 Or App 684 (2005).

THIRD THEORY OF MERGER

Crimes that are (1) Related but have (2) Different Elements from Different Statutory Provisions.

An uncommon one, but pops up occasionally. It’s basically where the elements of one crime – though from a different statutory provision – subsume the elements of the other crime. Might not qualify as a lesser-included offense since it isn’t always a “lesser” offense, but crimes of the same seriousness. See below for an example where all the elements of the more serious offense are contained in the less-serious offense.

Example #1: Intimidation in the Second Degree and Menacing. State v. Black, 320 Or App 263 (2022)

Example #2: Unlawful Use of a Vehicle and Possession of a Stolen Vehicle. State v. Noe, 256 P3d 166 (2011). But note the elements of UUV have changed in some circumstances, so this may no longer be true in all circumstances.

Example #3: Murder with a Firearm and UUW with a Firearm. Murder and UUW would not merge, because UUW has an element murder does not (the use of a dangerous weapon). But the additional allegation of “with a firearm” (which is considered an element of the offense) may supply the missing elements and therefore compel merger.

In theory, UUW could merge with other crimes where “with a firearm” is alleged (e.g., robbery in the first or second degree), as long as the other conditions are met (including same victim.) This may also depend whether the theory the state relies on for UUW includes “use or attempted use” of a dangerous or deadly weapon, or whether the state’s theory is exclusively “possession with intent to use.” The latter may be enough to defeat merger, since a person can use a weapon without possession it.

Example #4: Criminal Mistreatment and Assault (depends on the theories involved. See State v. Smith, 229 Or App 518 (2009)

Example #5: Identity Theft and Fraudulent Use of a Credit Card

Weird one. All the elements of ID Theft (a C felony) are contained in FUCC (an A misdemeanor). But when they merge, they stay a felony. State v. Haddon, 286 Or App 191 (2017)

In sum, proof of the elements of fraudulent use of a credit card proves the elements of the offense of identity theft, in the forms in which the offenses were alleged in this case. At least as is alleged here, identity theft does not require proof of an element that is not already included in fraudulent use of a credit card. Therefore, the trial court erred in failing to merge the separate guilty verdicts in each of those pairs of offenses (Counts 1 and 3; Counts 2 and 4). That is, the pair of offenses occurring on the first date should merge; the pair of offenses occurring on the second date should merge.

Defendant requests that the court vacate her convictions and sentences for misdemeanor fraudulent use of a credit card. We agree that the offenses merge into the more serious offense but describe the disposition more appropriately. State v. Cloutier, 286 Or. 579, 600, 596 P.2d 1278 (1979) (entry of conviction is for "the most serious of the offenses of which the defendant was guilty").

PRACTICE TIP: Argue that Cloutier is no longer good law and that it would violate vertical proportionality (State v. Simonson, 243 Or App 535 (2011)) to impose a felony sentence, when the “greater offense” is a misdemeanor.