How'd we do?

This wikilog article is a draft, it was not published yet.

by: Ryan • January 11, 2014 • no comments

Before we look at 2013, let's look at 2012. One of the questions we asked at the beginning of that year was:

(2) Under both statute and case law (St v. Wedge), the "gun minimum", aka the firearm enhancement, is an element of the crime it's attached to. This arguably means that, if the gun minimum is attached to a Felon in Possession, then the crime of Unlawful Use of a Weapon is a lesser-included offense. Consequently, the Court of Appeals will conclude that in such a situation, the two crimes of UUW and Felon in Possession (gun minimum) will merge into just a conviction for Felon in Possession.

Well, we were one year too early. The issue was decided in State v Flores this year, and yes, the two counts would merge into a single conviction.

Another question asked at the beginning of 2012 wasn't answered in 2012 or 2013. But I have every reason to believe 2014 will finally be the year:

(5) State v. Mallory seemed to hold that a finding of separate criminal episodes was, sometimes, a Blakely fact, but it has never been reaffirmed. In 2012, the COA will finally reaffirm it.

As for the 2013, quiz, it wasn't a great year. For question 1, we now know the answer was (B):

(1) The Oregon Supreme Court will announce the following holdings:

(B) If the prosecutor's theory is that your client could either be a principal or an accomplice, the judge must give a concurrence (aka Boots/Houston) instruction, if requested.

Alas, for every other question, either the appellate courts didn't answer or they answered disfavorably for the defense.

Three unanswered merger questions were:

(A) What are the new rules involving merger of MCS/DCS/PCS in light of the dramatic changes in merger law in the past few years?

(B) Can long-dead or imaginary people be victims of Identity Theft or ECSA, and if not, how does this effect merger?

(C) If the location of firearms within a residence can be enough to defeat merger of felon in possession counts, must the necessary findings be made by the jury?

I expect we'll get an answer to (B) this year, but I'm not optimistic that (A) or (C) will be answered in any meaningful way anytime soon.

Stay tuned for the 2014 quiz.