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4th Theory of Merger
by: Ryan Scott • May 8, 2024 • no comments
FOURTH THEORY OF MERGER
Lesser-Included Offenses
This has a lot of overlap with the Third Theory of Merger. Examples #3 and #4 immediately above would also arguably fall into this section, but generally when we think of lesser-included offenses, we think of assault IV as a lesser-included of assault III or assault II for example.
A crime is a lesser-included offense if it includes all but one or two of the elements of the higher offense and does not contain any additional elements.
Generally, robbery in the second degree (purporting to have, for example, a firearm) is not a lesser-included offense of robbery in the first degree (armed with a deadly weapon) because the former offense has an element the latter offense does not (that is, displaying or pretending to display a dangerous weapon). But robbery in the second degree might be converted into a lesser-included offense if the robbery in the first degree count includes the additional allegation of “with a firearm.”
Example #1: Reckless burning can be a lesser-included offense of arson. State v. Leckenby, 200 Or App 684 (2005).
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.
2nd Theory of Merger
by: Ryan Scott • May 8, 2024 • no comments
SECOND THEORY OF MERGER
Multiple Counts involving (1) Same Criminal Episode, (2) Slightly Different Elements, (3) Same Statutory Provision
Example #1: Two counts of theft in the first degree merge, even if the elements are different, as long as the other requirements are met, because different means of committing theft doesn’t indicate a legislative intent to reflect separate statutory provisions. State v. Slatton, 268 Or App 556 (2015). This can include, for example, theft by taking and theft by selling.
Same is true for different counts of robbery in the second degree based on different theories (e.g., aided by another and purport to have dangerous weapon) or kidnapping, if the counts are based on different theories. Generally speaking, if the title of the crime is the same, then it will be from the same statutory provision, though not always. Different degrees of crime (i.e., first versus second degree) are generally not from the same statutory provision. If they are from the same statutory provision, the facts still need to satisfy all the other conditions required for merger (one criminal episode, one victim, no sufficient pause.)
But be aware of this limitation to merger contained in ORS 161.067(3):
- Each method of engaging in oral or anal sexual intercourse as defined in ORS 163.305, and each method of engaging in unlawful sexual penetration as defined in ORS 163.408 and 163.411 shall constitute separate violations of their respective statutory provisions for purposes of determining the number of statutory violations.
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).
Felony Computer Crime
by: Ryan Scott • April 11, 2024 • no comments
Today, the Oregon Supreme Court issued an opinion in State v. Azar. The split opinion significantly narrowed the scope of one particular theory of felony computer crime. Even if you don't have a felony computer crime case, it is worth reading -- both the majority opinion and the dissent -- on the circumstances in which legislative history can narrow the scope of an otherwise broadly written statute.
And the opinion also suggests a potential defense to theft by selling in (of course) a footnote.
- 2 Under ORS 164.095(1),“[a] person commits theft by receiving if the person receives, retains, conceals or disposes of property of another knowing or having good reason to know that the property was the subject of theft.”
- Although “disposes” is not defined by statute, defendant does not dispute that selling property that a person knows or should know is stolen constitutes theft by receiving. See State v. Farmer, 44 Or App 157, 160, 605 P2d 716 (1980) (reaching that conclusion based upon ORS 164.055(1)(c), which provides that theft by receiving constitutes theft in the first degree when “committed by buying, selling, borrowing or lending on the security of the property”). We assume for purposes of the present discussion that selling stolen property with the requisite mental state constitutes theft by receiving, but we express no opinion on when in the course of a transaction an online sale qualifies as “dispos[ing],” whether at the time of the sale, at the time the property is physically transferred, or at some other time. [Emphasis added.]
If I understand the point of this footnote, the Court is saying that selling stolen property is not necessarily "disposing of the property," and therefore not necessarily theft-by-receiving, until the property is transferred in some way. So, for example, entering into an agreement to sell stolen property, or even receiving money for said property, may not constitute theft-by-receiving until the property is delivered.
I don't anticipate many situations where this would arise, but if it does, citing that footnote at MJOA might make you look like a genius.
A Gun Minimum Sentencing Hack
by: Ryan Scott • March 31, 2024 • no comments
I had previously had a blog post where I argued that the first time a gun minimum is imposed, it must be imposed on the most serious offense to which the gun minimum was attached. Therefore, if a defendant is charged with murder with a firearm and felon in possession of a firearm, the gun minimum must be imposed on the murder (where, admittedly, it would have no effect.)
However, is there a time when you'd want the gun minimum imposed on a later count, despite the law? That is, where it's something you'd rather negotiate for. Yes.
First, if the state seeks to impose prison on one count and probation on the other, imposing the gun minimum on the non-prison count would likely increase the availability of sentence-reduction programs (AIP, transitional leave) that would not be available on a prison sentence with the gun minimum finding, even if the gun minimum is not imposed.
Second, even if the defendant is looking at prison on both counts, putting the gun minimum sentence on a non-M11 count may allow a greater reduction for earned time.
For example, assume defendant reaches a deal where he is going to be sentenced to attempted murder and felon in possession. Both allege the gun minimum, and it's the defendant's second gun minimum, so he is looking at 10 years mandatory. If the gun minimum is imposed on the attempted murder, the defendant's 120 month sentence would have 90 months subject to ballot measure 11 and therefore without earned time. The defendant could get earned time on remaining thirty months. Assuming all earned credits are in fact earned, the defendant would serve a sentence of 114 months. But if the defendant receives 90 months on the attempted murder charge and 120 months on the charge of felon in possession of a firearm to run concurrently, the defendant would get earned time on all 120 months, thereby reducing his total time to 96 months. (120-24). This is not speculation. Samson v. Brown, 486 P. 3d 59 (2021)
Special Jury Instructions for Kidnapping
by: Ryan Scott • January 12, 2024 • no comments
THIS POST HAS BEEN AMENDED. In my opinion, one thing that sets a great defense lawyer apart from a good defense lawyer is the quality of their special jury instructions.
Special jury instructions have a number of advantages. If given, they can put the weight of judicial authority behind your argument. It's not just you saying what the state needs to prove, for example. It's what the judge is saying. If the instruction is not given, the standard of review on appeal is very defense-friendly. To obtain a reversal on an ungiven special jury instruction, you need the instruction to be a correct statement of the law and any evidence in the record that would justify it. This is the reverse of the standard of review for MJOA, where the evidence is viewed in the light most favorable to the state. (To be precise, it's also important that the instruction is not only a correct statement of the law but also is not unduly slanted toward the defendant.)
When are jury instructions most valuable? Usually when the statute is broadly written, but either the legislature or the case law has narrowed the scope of the statute. That happened with the crime of kidnapping, for example. Back in 2017, I spoke at a conference in Portland and recommended -- among many other things -- the following special jury instructions:
A Common Mistake Among Minor Felony Attorneys
by: Ryan Scott • December 10, 2023 • no comments
One longstanding argument is that the way the laws are written, a person's ODL should not be suspended because of a conviction for either unlawful use of a vehicle or possession of a stolen vehicle. The reasoning is simple. The law allows a suspension if an element of the crime includes a "motor vehicle." Neither UUV or PSV have an element that specifies "motor" vehilce, and the fact that the crime may have involved a motor vehicle doesn't make "motor vehicle" an element of the crime.
As far as I know, this issue hasn't made it to the Court of Appeals. Part of the reason for that is that certain prosecutors have conceded the issue. Part is that some defense attorneys aren't aware of the issue. Another reason, I suspect, is that even defense attorneys who are aware of the issue decide it's not worth fighting over when the defendant is going to get a two or three-year prison sentence and the license suspension is only for a year. No driving in prison, anyway.
Except that if the trial judge does impose a license suspension of one year, even if the suspension order indicates that the suspension will begin at the time of sentencing, DMV won't actually suspend the license until the defendant is freed from prison, adding to the hardship that comes with leaving prison. The more hardship, the increasing likelihood the defendant will recidivate.
If you want to help your clients stay crime-free when they get out of prison, argue against the license suspension and if you lose, send the issue up to appeal. It won't just be your client who benefits.
Unreasonable Self-Defense
by: Ryan Scott • December 10, 2023 • no comments
If a defendant properly raises a claim of self-defense, the state must disprove that defense. The jury will be instructed as follows:
- A person is justified in using physical force on another person to defend herself from what she reasonably believes to be the use or imminent use of unlawful physical force. In defending, a person may only use that degree of force which she reasonably believes to be necessary. The burden of proof is on the state to prove beyond a reasonable doubt that the defense does not apply.
But what if a person believes they are acting in self-defense but their belief is unreasonable? The state will argue the defense does not apply. But is someone who intentionally kills someone no more morally culpable than someone who kills out of an unreasonable misapprehension of the need to defend themselves? Should the law recognize a difference between the two?
Arguably, the law already does so, albeit indirectly. You might be able to get there by applying a mental state to the element of self-defense. All material elements for crimes in the criminal code have mental states barring express language from the legislature. "Not acting in self-defense" is an element (i.e., something the state must prove in order to obtain a conviction.)
For more on this argument, please e-mail me directly.
Threatening to Go And Get a Gun: Is That UUW?
by: Ryan Scott • December 5, 2023 • no comments
If I point a gun at you in a menacing way, that will likely constitute the crime of Unlawful Use of a Weapon, barring any defenses. But what if I tell you that if you don't leave my neighborhood, I'm going to go inside, get a gun, and then come back out and shoot you? Is that UUW?
Here's what the Oregon Supreme Said about the subject, when tasked with deciding whether the "use" in UUW encompassed threatening someone with a firearm.
- The problem with both arguments is that they neglect to distinguish between threatening to use a weapon and using a weapon as a threat. The two are not—or at least, not necessarily—the same. One may threaten to use a weapon without ever touching it, as when, for example, a person says to another, "If you do not give me your money, I will get my gun and shoot you." That does not constitute a current "use" of a weapon, as it is a threat to use it sometime in the future. In contrast, one also may use a weapon as a threat, as when one person points a gun at another and says, "Give me your money." In a sense, that is a threat to use the weapon in the future; there is an implicit warning that, if the money is not forthcoming, the gun will be fired. But—and this is key—it is also a current use of the weapon as a threat.
State v. Ziska, 355 Or 799, 808, 334 P3d 964 (2014)
