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The OCDLA Library of Defense is a digital manual for criminal defense built by the collective contributions of OCDLA members. Ultimately, it will contain every law, every case, every expert, every resource and every good idea an Oregon defense attorney might need. But only if you help us out. If you visit a page on this website that is missing a case or has a typo, please [[How_To_Edit|edit the page]]. You can even reorganize or rewrite the page if you're feeling ambitious. If you have any questions or suggestions, please email me at: '''Alex Bassos at abassos@gmail.com''' | The OCDLA Library of Defense is a digital manual for criminal defense built by the collective contributions of OCDLA members. Ultimately, it will contain every law, every case, every expert, every resource and every good idea an Oregon defense attorney might need. But only if you help us out. If you visit a page on this website that is missing a case or has a typo, please [[How_To_Edit|edit the page]]. You can even reorganize or rewrite the page if you're feeling ambitious. If you have any questions or suggestions, please email me at: '''Alex Bassos at abassos@gmail.com''' | ||
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<h2>'''Recent [[The_Blog|Blog]] Posts'''</h2> | <h2>'''Recent [[The_Blog|Blog]] Posts'''</h2> | ||
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Revision as of 17:23, November 16, 2012
The Library
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Even a Child Can Edit This WebsiteThe OCDLA Library of Defense is a digital manual for criminal defense built by the collective contributions of OCDLA members. Ultimately, it will contain every law, every case, every expert, every resource and every good idea an Oregon defense attorney might need. But only if you help us out. If you visit a page on this website that is missing a case or has a typo, please edit the page. You can even reorganize or rewrite the page if you're feeling ambitious. If you have any questions or suggestions, please email me at: Alex Bassos at abassos@gmail.com
Recent Blog Posts
4th Theory of Mergerby: 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 Mergerby: 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)
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 Mergerby: 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):
1st Theory of Mergerby: 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):
What constitutes a sufficient pause?
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 Crimeby: 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.
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. Next 20 Articles Appellate Review
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