3rd Theory of Merger

by: Ryan Scott • May 8, 2024 • no comments

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.