State v. Davis

Crimes which occur at different times do not merge if there has been the opportunity to renounce criminal intent.

After police officers found a rifle and a shotgun in Defendant’s home, he was charged with two counts of felon in possession of a firearm. The trial court found him guilty on both counts; however, later at a sentencing hearing, Defendant argued the trial court’s determination of guilt should merge under ORS 161.067, resulting in a single conviction. The trial court ruled that the Defendant’s guns were stored in different locations, so merger would not be appropriate. On appeal, Defendant renewed his argument for merger. The state argued the court lacked jurisdiction, and that the trial court properly rejected defendant’s merger request. The state argued that the merger would not suffice since evidence indicates that Defendant obtained the two firearms at different times, and the pause was indicative of the fact that he renounced his criminal intent. The Court held that it had jurisdiction over this appeal because defendant’s merger argument is based on a sentence in ORS 138.222(7) which grants jurisdiction. As a result, the Court can review this because it raised a claim that the sentencing failed to comply with the law in imposing or failing to impose a sentence. The Court concluded that there was no merger because Defendant gained possession of the firearms at different times that were separated by a pause to give defendant an opportunity to renounce his criminal intent. Motion to dismiss denied; affirmed.