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Playing the Cards You're Dealt

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by: Ryan • August 18, 2012 • no comments

Example #1 of why you should think about merger before you go to trial and, even better, before your client waives his 60 day rights.

I have written previously that I believe the COA has gotten it wrong when it comes to merger and ID Theft. But for this post, I want to assume they've got it completely right. Can we ever get merger when the names on the IDs are different? (We already know we can get merger when the names are the same: St v Mac Donald.)

So to start, we will assume St v. Sumerlin is good solid law. It's not an ID Theft case, but rather it involves Reckless Endangering, and it holds that, when it comes to Reckless Endangering, sometimes there is a specific victim (e.g., the kids in the car) and sometimes there isn't (e.g., the state, or the public-at-large). What the court said: reckless endangering "covers potential risks as well as cases where a specific person is within the zone of danger." 139 Or App at 587 n 7.

The consequence of this straddling (sometimes there is a specific victim, sometimes it's the public-at-large) is that a defendant can be convicted of 3 counts of reckless endangering for 3 kids in the car, and the counts don't merge into a single conviction. But if you had 3 counts of reckless endangering, and no victims were named, and the state went with a theory of "public-at-large" for each count, they would merge.

Further, let's assume the state intended three actual real victims but the prosecutor didn't know their names, so no one is named in the indictment. For example, three pedestrians who were narrowly avoided during a high speed chase. If there is no name in the indictment, and the jury isn't asked to find separate victims, then the charges might merge as well. And that's based on this analysis:

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).")

This brings us back to ID Theft. As you know, per statute, the identity that was misappropriated can belong to a real person or it can belong to an imaginary person. Let's assume a defendant makes fake social security cards on his computer. Let's further assume that half of the ID Theft charges are based on the social security number belonging to a real, living person and half are based on social security numbers that belong to long-dead people. But your client is charged with 100 counts of ID Theft, and the prosecutor didn't bother to name either the living or the dead who are represented by each count.

How many of those counts (if any) merge?

First, for reasons I won't belabor here, I think imaginary people and dead people are legally identical when it comes to ID Theft. Whether I create a fake ID in the name of Mickey Mouse or Abraham Lincoln, in neither case is either them a real victim as intended by the relevant constitutional provisions. (Neither Mickey or Abe have a right to be notified of all court dates, or to be heard at sentencing, etc.)

Because 50 ID Theft counts involve 50 different, but dead, persons, and dead people aren't victims, then all 50 counts merge into a single conviction.

But unless the prosecutor asks the jury to find that the other 50 people are actual, real, living victims, then under the Westbrook analysis quoted above, I think those 50 also merge. Despite 100 charges, despite 100 guilty findings, the defendant only ends up with 1 conviction.

While I can't point to a case yet that follows this analysis, I don't think there's a COA opinion that undermines it either.