1st Theory of Merger

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

There are four ways that multiple guilty verdicts can result in a single conviction. I will do a brief post on each.

MERGER

ORS 161.067 Determining punishable offenses for violation of multiple statutory provisions, multiple victims or repeated violations. (1) When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.

FIRST THEORY OF MERGER

Multiple Counts of (1) Same Crime, (2) Same Elements, (3) Same Criminal Episode, (4) Same Victim

Example #1: Multiple counts of misdemeanor assault IV against one person. All guilty verdicts merge into a single conviction.

They presumptively merge, because none of the anti-merger requirements listed in ORS 161.067(1) are satisfied. However, if one assault is divided from the others by a “sufficient pause,” that can defeat merger under ORS 161.067(3):

(3) When the same conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involves repeated violations of the same statutory provision against the same victim, there are as many separately punishable offenses as there are violations, except that each violation, to be separately punishable under this subsection, must be separated from other such violations by a sufficient pause in the defendant’s criminal conduct to afford the defendant an opportunity to renounce the criminal intent. . . .

What constitutes a sufficient pause?

A "sufficient pause" within the meaning of ORS 161.067(3) occurs when there is "a temporary or brief cessation of a defendant's criminal conduct that occurs between repeated violations and is so marked in scope or quality that it affords a defendant the opportunity to renounce his or her criminal intent." State v. Huffman, 234 Or App 177, 184, 227 P3d 1206 (2010). Before separate convictions can be imposed, "one crime must end before another begins." Id. at 185, 227 P.3d 1206 (quoting State v. Barnum, 333 Or 297, 303, 39 P3d 178 (2002), overruled on other grounds by State v. White, 341 Or 624, 147 P3d 313 (2006)). "Thus, to support the entry of multiple convictions for the same offense under ORS 161.067(3), one crime must end 414*414 before another begins and each crime must be separated from the others by a sufficient pause in the defendant's criminal conduct to afford him an opportunity to renounce his criminal intent." State v. West-Howell, 282 Or App. 393, 397-98, 385 P3d 1121 (2016), rev. den., 361 Or 312, 393 P3d 1173 (2017) (emphasis in original).

Consequently, if you take example #1, and the trial court finds a sufficient pause between the assaults, the counts do not merge (although they are still from the same criminal episode.) The Court of Appeals rarely finds evidence of sufficient pause, but one example of a trial judge making such a finding that was upheld after appellate review is State v. Aitken, 255 Or App 17 (2013).

PRACTICE TIP: Is a finding of a sufficient pause a Blakely element? After all, the way the statute is written, it appears to be a finding that must be made to increase the number of convictions against the defendant. While we think of Blakely elements as factors that increase the sentence, it seems the jury trial right to determine the number of convictions is even more constitutionally rooted. You can preserve this argument at sentencing, noting the state’s failure to (1) give notice and (2) submit the question of a sufficient pause to the jury. The Oregon Supreme Court has rejected the idea that generally a finding of separate criminal episodes is a Blakely finding in State v. Cuevas, 358 Or 147 (2015). But see State v. Thornsberry, 315 Or App 287 (2021) for an exception to that rule, which might be a better analog to a finding of a sufficient pause.

Example #2: Multiple counts of sexual abuse in the first degree, each alleging a different body part. Different body parts are not the same as different elements. They should merge absent a sufficient pause. State v. Nelson, 282 Or App 427 (2016)

Example #3: Multiple charges of felon in possession of a firearm, due to multiple guns. Merge, under State v. Ferguson, 276 Or App 267 (2016).

Example #4: Multiple charges of identity theft, based on possession of multiple fake documents. As in example #3, these should merge if they involve the same victim. Different names will often suggest different victims, but keep in mind identify theft can involve “imaginary” or “dead” people. Imaginary and dead people cannot be victims, so try to find out if they really exist or at least note the state’s failure, when appropriate, to prove they do.

Example #5: Multiple counts of Encouraging Child Sexual Abuse do not merge because the images received over the internet usually show different children, which is enough for a finding of separate victims. But at the time the crime of ECSA was committed (that is, when the defendant took possession of the images), there is usually no evidence that the children are still alive. If they are dead, they cannot be victims. Has the state proven separate victims if they cannot prove the children are still alive? This is a sad, creepy argument, but probably correct under the law. It will take a lot of pushing to get the appellate courts to address it however.

NOTE: There is no such thing as “merger for sentencing.” Counts either merge into a single conviction or they don’t. If the issue is whether the counts can be run consecutively, that is an entirely different question. State v. White, 346 Or 275, 279 n 4 (2009).