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Your client is charged with the same crime twice, both occurring almost simultaneously and involving the same victim. They merge, right? Normally yes, but in one crime, your client is charged as a principal. In the other, an accomplice. Does that change the analysis?

(When might this occur? Two guys shoot at the victim. Both miss and both are charged with two counts of UUW, because each discharge is a separate crime. They are each charged with two, because when defendant A discharged the firearm, he was a principal for UUW. When he encouraged defendant B to discharge the firearm, he was an accomplice.)

The following analysis is taken from a brief by David Ferry, although it has been modified, including some redactions.

II. ORS 161.067(1) does not prevent merger because defendant violated only one statutory provision.

Under ORS 161.067 (1), for a single criminal episode to constitute multiple statutory violations, the following circumstances must exist: “(1) [the] defendant must have engaged in acts that are ‘the same criminal conduct or episode’; (2) [the] defendant’s acts must have violated two or more ‘statutory

provisions’; and (3) each ‘statutory provision’ must require ‘proof of an element that the others do not.’” State v. Parkins, 346 Or 333, 348, 211 P3d 262 (2009) (quoting State v. Crotsley, 308 Or 272, 278, 779 P2d 600 (1989)).

Here, as noted above, this case involves only a single criminal episode. Moreover, each of the paired counts—Counts 2 and 3, and Counts 4 and 5—involve only a single statutory provision.

The state argued below that despite the singular nature of the indictment’s charges, Counts 3 and 5 actually involved separate violations of the aid and abet statute (ORS 161.155) rather than the substantive criminal statutes. But Oregon’s appellate courts have long held that the aid and abet

statute does not create a separate basis for criminal liability. State v. Cobb, 224 Or App 594, 597-98, 198 P3d 978 (2008).

In Cobb, the defendant argued that, because he was convicted under an aiding and abetting theory, he was not convicted of the substantive crime of second-degree robbery, which was required for application of the mandatory minimum sentence set out in ORS 137.700. Id. In rejecting that argument, this

court explained that aiding and abetting is merely a “theory of criminal liability, not a separate offense.” Id. at 598. Accordingly, although ORS 161.155 was used as a basis for holding the defendant liable for the conduct of the codefendant, “the offense for which he was convicted is second-degree robbery.” Id.

Thus, ORS 161.067(1) does not prevent merger in defendant’s case.

In other contexts, Oregon courts have explained that, when determining whether a defendant violated multiple statutory provisions, the crux of the issue is whether the legislature intended to create multiple crimes. State v. White, 346 Or 275, 280, 211 P3d 248 (2009). Typically, that rule is applied when a

single statute provides different means of committing a crime—when the crime can be committed in different ways by satisfying different elements. Thus, for purposes of the merger statute, when a criminal statute merely provides different methods or theories of liability, there remains only one offense. Only when a statute addresses different risks and harms in separate provisions will there be separate statutory provisions for application of ORS 161.067(1). Compare State v. Johnson, 174 Or App 27, 32, 25 P3d 353 (2001), rev den, 334 Or 492 (2002) (holding that the paragraphs setting out different ways of committing first-degree robbery are separate “statutory provisions” for purposes of merger of convictions because they address different risks of harm), with State v. Kizer, 308 Or 238, 243, 779 P2d 604 (1989) (stating that paragraphs in the forgery statute constitute a single “provision”), and State v. Miller, 309 Or 362, 369, 788 P2d 974 (1990) (holding that the paragraphs in the DUII statute are alternative methods of proving one crime).

Based on the law, then, the state’s novel argument below suggesting that a different theory of liability—aid and abet liability—created a different set of elements or a separate statutory provision for purposes of ORS 161.067(1) is unavailing.

In an earlier blog post, I argued that when a defendant downloads CSAM for his own personal use and there is no evidence of an intent to distribute, he should be subject to an ECSA II sentence rather than the ECSA I sentence that results from COA's anachronistic interpretation of duplication. https://libraryofdefense.ocdla.org/Blog:Main/Framing_the_proportionality_argument_for_ECSA_I More specifically, ECSA I -- which was intended to target distributors of child porn -- can be charged when a defendant duplicates child porn, because at the time the statute was written, the only reason for duplicating a film or still photograph was to distribute it. But the COA has interpreted mere downloading as a form of duplication, and therefore downloading -- even if for strictly personal use -- satisfies the elements of ECSA I despite capturing defendants who are simply consumers of child porn.

In sum, ECSA I criminalizes a wide swath of behavior, including behavior that is not meaningfully different than behavior fully covered by ECSA II. It is therefore disproportionate under Article I, section 16, of the Oregon Constitution to punish someone as a distributor when they are exclusively a consumer.

This is an as-applied argument, not a strict virtual proportionality argument, because the facts matter. In this case, the facts would be the absence of any evidence defendant had an intent to distribute.

I believe a similar dynamic arises in the contest of DCS w/in 1000 feet of a school. A wide swath of behavior is captured by this charge, from dealing directly in front of high school or grammar school during school hours, to possessing w/ intent in a residence that happens to fall w/in 1000 feet of property owned by the school district (even when school is out of session).

Since there are circumstances where a charge of DCS w/in 1000 feet of a school is based on a mere technicality and not on any increased risk to children, the behavior is more like a straight DCS and should be sentenced accordingly.

In Richards v. Brown, 345 Or. App. 321 (2025), the Court of Appeals held that a jury could only reject an extreme emotion disturbance (EED) defense to murder if at least ten of them rejected it. Prior to that decision, if nine jurors believed the defendant was operating under EED at the time, but three didn't, the defendant was guilty of murder.

"It bears emphasis that, even though EED is only a partial defense, it is still an affirmative defense. Proving it renders a defendant not guilty of second-degree murder and guilty, instead, of first-degree manslaughter. An EED finding quite literally precludes a guilty verdict on second-degree murder. Therefore, under ORS 136.450 (2019), just as ten jurors had to concur on the elements in order to render a guilty verdict for second-degree murder, ten jurors had to concur that petitioner had not proven her affirmative defense."

Richards, 345 Or App at ___.

Great opinion, but why does the headline of this post say it now has to be a unanimous rejection. Because the statute has changed. As the Richards court noted in fn 8:

"We recognize that, under the current version of ORS 136.450, it may be that a jury must unanimously reject the EED defense to arrive at a general guilty verdict in a second-degree murder case. ORS 136.450(1) ("(1) A jury in a criminal action may render a verdict of guilty only by unanimous agreement.")."

Id. at ___.

By the way, even though EED is only a defense to murder 2, don't forget to argue that, under the Oregon Constitution, it justifies a lower sentence for attempted murder. https://libraryofdefense.ocdla.org/Blog:Main/Applying_EED_at_Sentencing_to_Attempted_Murder