Oregon Appellate Court - February 6, 2013

by: Jwestover and Abassos • February 6, 2013 • no comments

ONLY ONE VICTIM PERMITTED

Single Entry/Single Victim

Multiple burglaries merge into one conviction when based on a single unlawful entry and a single victim. Ditto for coercion with one act and one victim. White and Glaspey are controlling. Per Curiam. State v. McMurren, 232 Or. App. 272, 221 P.3d 830 (Nov. 2009)

Multiple Theories

Burglary with both the intent to commit rape and with the intent to commit sex abuse add up to one burglary with two theories. That means they merge for conviction. The two counts become one conviction. They don’t just merge for sentencing. This is plain error and subject to reversal even when unpreserved. However, it was not plain error or perhaps error at all to fail to merge the four counts of sexual abuse. State v. Lepierre, 235 Or. App. 391, 232 P.3d 982 (June 2010)

Aggravated Murder – Multiple Theories

Multiple counts of aggravated murder merge when they arise out of the murder of a single individual. In fact, it’s plain error for the court not to merge. State v. Thomas, 2010 WL 4323207, 2010 Or. App. LEXIS 1283 (Nov. 2010)

Convenience Store Robbery: When you have a situation where there are multiple counts of the exact same crime, you need to first ask, “does each count have a different victim?” See State v. Hamilton 348 Or 371 (June 10, 2010)(Different victims from a single Robbery serve to prohibit merger of multiple robbery counts, and a person against whom the defendant uses or threatens violence who is a victim, regardless of whether they own or possess the property stolen.)

A quick word about “victims” and whether the state is a “victim” for purposes of merger (Until State v Torres, (May, 2012), this was the law):

[As] we have previously recognized, the state is not a “victim” for purposes of ORS 161.067. See State v. Ott, 96 Or App. 511, 514, 773 P2d 19, rev den, 308 Or 382, 780 P2d 735 (1989) (“[F]or purposes of ORS 161.062(4), the term ‘victim’ does not encompass * * * the state.”).

State v. Camarena-Velasco, 207 Or App 19, 22-23 (2006)

How does Torres change this analysis? Well, the state can be a victim, but does this mean if the state is a victim in one count, and a real person in another, the two wouldn't merge (even if they would have before Torres) because the real person and the state are two different victims? Don't know but expect the AG's office, at least, to make that argument on those rare occasions it comes up.

Felony Hit and Run (do not merge)

Same question as above: how many victims? Until 2011, you might have been correct in concluding that the state is the victim, since the crime is running away, not causing the injury. This conclusion would have been supported by State v. Duffy, which held that “hit and run” was not compromisible, because there was no victim who would have a civil remedy. State v. Duffy, 33 Or App 301 (1978); see also State v. Eastman/Kovach, 292 Or 184, 189-90, 637 P2d 609 (1981). Had this analysis been correct, four people injured, four counts of Felony Hit and Run, only one conviction.

But the COA held that, in fact, the people injured by a felony hit and run are victims, and therefore the counts do not merge. State v. Moncada, 250 P. 3d 31 (March 2, 2011).

Moncada summarizes the analysis, from cases such as Glaspey and Luers, that should be used in determining who is a victim, when it is not clear from the statute:

We glean a single, salient principle from Glaspey and Luers, which informs the outcome in this case: Where the statute defining a crime does not expressly identify the person who qualifies as a “victim,” the court examines the statute to identify the gravamen of the crime and determine the class of persons whom the legislature intended to directly protect by way of the criminal proscription. (Emphasis added.)

This quote is quite important, because it emphasizes that it is a “class” or category of persons who would qualify as victims, not anyone who might happen to be harmed. (There is always the possibility of collateral harm to persons the legislature did not intend to constitute victims.) Thus, for a crime like ID Theft, where there are competing arguments over who is the victim, judges have a choice: either the victim is the person or business that the defendant intends to defraud or deceive or it is the “real or imaginary” person whose identity is stolen. Can a class of persons include imaginary people when imaginary people can’t, by definition, be harmed? The answer is yet to be determined.

Encouraging Child Sexual Abuse (e.g., multiple photographs, but again the same question: how many victims? It’s an open question per State v. Betnar, 214 Or. App. 416 (August 15, 2007) whether the child in the photo is a “victim” of someone downloading the photo years, maybe even decades, after the photo was taken. There’s no dispute the child is a victim of the photographer, but that’s not the issue here. This argument has prevailed at the trial level in Washington County, but beware of the state shifting its argument from separate victims to separate criminal episodes, based on when the photos were downloaded. There are many problems with the state making the latter argument, and case law on separate criminal episodes should be very familiar to defense counsel – particularly St v. Boyd, St v. Plourd and St v. Mallory.)

Again, no issue of “sufficient pause,” since there is no pause in simultaneous possession. Huffman, supra.

Here is what I think is a big unanswered question in merger law. It involves those cases that may have different victims. The question is this: can a crime sometimes have a victim and sometimes not?

The reason I think this is a question is this: In St v Glaspey and its progeny, the courts have said that whether or not there is a victim (or who the victim is) depends on legislative intent. In other words, you don’t look at the facts of a particular case, you look at legislative intent. Consequently, in Glaspey, the court looked at legislative intent and decided that child-witnesses weren’t victims of Felony Assault IV. It doesn’t matter whether the state could prove that a particular child in a particular case was actually injured (psychologically) by witnessing the assault.

So take a case like ID Theft, where sometimes the “victim” is real and sometimes he’s “imaginary.” Let’s grant that the legislature didn’t intend imaginary victims. In light of the Glaspey analysis, can we say that the legislature intended that the person whose identity is taken is a victim, unless the facts show he doesn’t exist, in which case there is no victim? In other words, did the legislature intend that sometimes we should consider the facts of the case in determining if there is a victim?

Is that at odds with Glaspey, and what authority is there for the “sometimes facts matter” analysis in determining a victim’s existence?

This question also comes up in Reckless Endangering.

In Reckless Endangering, the COA has said there is a discrete victim of the crime. State v. Sumerlin, 139 Ore. App. 579. (And therefore they don’t merge.)

“Civil compromise only applies, however, to crimes having “a discrete victim or victims” and not to offenses committed against the public at large, such as public indecency and reckless driving. Van Hoomissen, 125 Ore. App. at 683; State v. Dugger, 73 Ore. App. 109, 112-13, 698 P.2d 491 (1985). Therefore, it must follow that, as a crime subject to civil compromise, reckless endangering has “a discrete victim or victims.” Because defendant’s nephews were both in the car, his reckless conduct endangered two discrete victims. Therefore, ORS 161.067(2) prohibits the merger of the two reckless endangering convictions. The trial court properly refused to merge those counts.”

But note that State v. Sumerlin cites legislative history that says the recklessly endangering statute “covers potential risks as well as cases where a specific person is within the zone of danger.” 139 Or App at 587 n 7.

I think that that kind of straddling described above (sometimes there’s a specific victim, sometimes not) is inconsistent with the categorical definition of victim at issue in Glaspey and Harbert. Consequently, I think that Sumerlin should be revisited in light of Glaspey‘s determination of who or when there is a victim. If the COA recognizes that they can’t have it both ways (sometimes there’s a victim, sometimes not), and I think under Glaspey they can’t, then they may find there aren’t discrete victims and overrule State v. Sumerlin.

Regardless, the jury would have to find separate victims, which the state may find problematic if there aren’t separately named victims in each count in the indictment. See State v. Westbrook, 224 Or App 493 (Dec 24, 2008)(“ The problem with the application of Article I, section 44(1)(b), under these circumstances is, as defendant noted in the trial court, that the indictment did not allege (and defendant did not admit) that the relevant crimes involved separate victims. When an error involves a deprivation of the Sixth Amendment right to a jury determination of facts necessary to support sentences, we must remand for resentencing unless we can conclude that the error is harmless beyond a reasonable doubt. Washington v. Recuenco, 548 US 212, 126 S Ct 2546, 165 L Ed 2d 466 (2006).”)

Sex Abuse (e.g., one count genitals, one count breasts): the strange procedural history of State v. McCloud, 177 Or App 511 (2001) and State v. McCloud, 184 Or App 659 (2002) creates an appearance of confusion on this issue even when there really isn’t any. (Short version: McCloud II reversed McCloud I after relying on a case that has since been disavowed. Without question, McCloud I is the more accurate statement of current law.) If the defendant is charged with three counts of sex abuse, for contact with the breasts, genitalia and anus, all three counts would merge into a single conviction unless there is a sufficient pause. Aside from reading the McCloud opinions above, look at State v. Watkins, 236 Or App 339 (July 28, 2010), for a perfectly analogous situation in which seven counts of assault, arising out of seven stabs of the victims, resulted in one only convictions.

Resisting Arrest of Two Officers

Where defendant committed a single offense of resisting the contemporaneous efforts of the two officers to arrest him, it is plain error to not merge the charges into a single conviction. Defendant here did not separately resist each officer but made a single act of resisting arrest while both officers attempted to arrest him at the same time, since there was no lapse of time to separate the act(s) of resisting arrest, the trial court should have merged the separate charges into one conviction. State v. Birchard.

ID Theft

The multiple convictions for each ID from victim’s wallet in the possession of Defendant should have merged into one ID Theft conviction. Per Curiam reversal.

Ryan Scott gives some context to the case:

Todays per curiam opinion in State v. MacDonald holds that a bunch of IDs — in the name of a single person — all merge into one. The important part of the decision is that it reaffirms, yet again, that the existence of multiple items of contraband is not, by itself, an obstacle to merger. So, 12 rocks of cocaine — they merge into one PCS. 12 firearms, one felon in possession. 12 fake $100 bills, one Forgery 1. (State v. Merrick.) 12 pieces of ID, one count of ID Theft. 12 nude photos of children, one count of Encouraging. Now, those last two examples come with caveats. The caveat is the same for each: they don’t merge if there are separate victims. But as St v. Betnar opined, whether or not a child in the photos is a victim of “encouraging” is an open question. And whether the person who is named in the ID is a victim of Identity Theft would be at odds with St v. Graves (in a forgery case, the person who is going to be defrauded — not the person whose name was used — is the victim).

State v. MacDonald, 232 Or. App. 431, 222 P.3d 718 (Dec. 2009)

ID Theft – same “stolen identity” in each count — Merge: State v. Alasdair Mac Donald, 232 Or App 431 (Dec 9, 2009). From the opinion: “The five counts of identity theft arose from defendant’s possession of the victim’s wallet, which contained various forms of the victim’s personal identification. On appeal, defendant contends that ‘[t]he trial court erred in failing to merge Counts 1, 3, 4, 5, and 6 into one conviction of identity theft.’ According to defendant, ‘[b]ecause [his] conduct constituted multiple violations of the same statutory provision, harmed the same victim, and was simultaneous rather than separated by any pause,’ the trial court should have merged the identity theft convictions. The state concedes that the trial court erred in that regard. We agree and accept the concession.” Reaffirmed in State v. Hathaway, 236 Or App 184 (June 30, 2010)

Though expected, this is a great opinion, not just for ID Theft cases but also any case in which there are multiple “things,” e.g., guns in a felon in possession case.

And again, no issue of “sufficient pause,” since there is no pause when items are possessed simultaneously.

ID Theft – different stolen identities on the pieces of ID – Unknown whether they merge, but the Oregon Court of Appeals heard oral argument on this issue in January, 2011, so expect an answer before 2012.

The still-unanswered question occurs when the defendant is in possession of multiple pieces of ID, as in State v. Mac Donald (see above), except that the identities on the IDs are different. Whether those counts merge hinges on what constitutes a “victim”, given that one can be convicted of ID Theft for stealing the identity of an imaginary person. There are two different approaches to this issue. First, you could argue that you can’t have imaginary victims, and therefore the statute doesn’t contemplate a victim. If no victim contemplated by statute, all counts from the same criminal episode should merge.

Alternatively, if there is a victim, it would be the person who is or would be defrauded, not the person whose name is used to defraud. See State v. Graves, 92 Or App 642, 759 P2d 1121 (1988) (concluding that a defendant who conspired to have nine checks belonging to Paramount Business cashed a nine different banks was properly convicted of nine counts of forgery because the nine banks were the victims of the conspiracy; Paramount Business, on the other hand was not a victim). In this scenario, failure of the state to prove the defendant intended to defraud different people would result in merger of all counts.

Felon in Possession: Merge, if there isn't a "sufficient pause" between counts. See St v. Torres, in which the COA upheld the merger of 21 counts of felon in possession for 21 guns kept in one place. Where the court has apparently gone of the rails is in holding that guns located in different places around the house would permit a finding of either a sufficient pause or separate criminal episodes, which would defeat merger.

For federal discussion of this issue, see United States v. Ankeny, 502 F.3d 829 (2007) for a federal analysis that might help with the state analysis. (“In United States v. Szalkiewicz, 944 F.2d 653, 653-54 (9th Cir. 1991) (per curiam), we held that, regardless of the number of firearms involved, there is only one offense of being a felon in possession unless there is a showing that the firearms were ‘stored or acquired at different times and places.’ Further, the separateness of acquisition or possession must be found by a jury (or, presumably, admitted by the defendant). Id.; see also United States v. Keen, 104 F.3d 1111, 1118 n.11 (9th Cir. 1997) (same).”)

Two Thefts by Taking from one store, in the same episode, merge when no evidence of a sufficient pause. State v. Huffman, 234 Or App 177 (March 3, 2010) Could easily have gone the other way, had evidence of a sufficient pause been presented.

Abuse of a Memorial: merge, if no finding of “sufficient pause.” State v. Bowers, 234 Or App 301 (March 17, 2010).

Money Laundering: merge. Three different theories of Money Laundering, three different counts, one conviction. State v. Banks, 236 Or App 179 (June 30, 2010)

Possession of a Stolen Motor Vehicle and Unlawful Use of a Motor Vehicle: merge. Same car, one conviction. State v. Noe, 242 Or App 530 (April 13, 2011)