State v. Burris

Under ORS 161.067--the Anti-Merger statute, guilty verdicts do not merge if the same conduct violates two or more statutory provisions and each provision requires proof of an element the other does not.

Defendant appealed the trial court’s judgment, claiming that the trial court erred by refusing to merge several robbery offenses under Oregon’s Anti-Merger statute. Defendant argued that Count 1 and Count 2 (first and second degree robbery respectively) should merge with Count 3 (second degree robbery under a different theory). The Court stated that if the elements of one provision are presumed in the other statute than they can be merged. The Court found that the elements of the violations at issue were presumed because first-degree robbery’s proof requirement of a “deadly weapon” could not be presumed from second-degree robbery’s requirement of purports to have a dangerous or deadly weapon. The Court did make a distinction that should this be about only Count 1 and Count 2 it is possible that they would merge, but because Defendant argued that they should merge with Count 3 such a merger cannot occur. Affirmed.