State v. Rhee

Under Oregon’s merger statute, ORS 161.067(1), in order to determine whether statutory provisions require “proof of an element that the others do not,” a court should examine only the statutory elements of each offense, not the factual circumstances alleged in the indictment. When a statute contains alternative forms of a single crime, a court should look to the indictment to determine which form is charged for merger analysis.

Defendant appealed judgments in two separate cases. In the first case, Defendant was convicted of various offenses, including attempted first-degree robbery and unlawful use of a weapon (UUW). The second case revoked Defendant’s probation on previous convictions due to the new convictions. On appeal, Defendant argued the trial court erred in two respects: first, Defendant argues the trial court should have merged the convictions for first-degree robbery and UUW into one conviction, as the elements for UUW were subsumed under the charge of first-degree burglary; and second, that the orders mandating he pay attorney fees were error because the record contained no evidence of his ability to pay. To determine whether statutory provisions require “proof of an element that the others do not,” ORS 161.067(1), a court should examine only the statutory elements of each offense, not the factual circumstances alleged in the indictment. When a statute contains alternative forms of a single crime, a court should look to the indictment to determine which form is charged for merger analysis. Defendant’s merger argument failed here because it was based on the assumption that in charging him with first-degree burglary the State necessarily implied that he possessed the weapon; a necessary element of UUW. Even though Defendant did have a knife, actually possessing the dangerous weapon with which a person intends to commit the crime is not a necessary element of first-degree robbery. The Court agreed with Defendant regarding the orders to pay attorney fees, as it is plain error when the record is silent regarding the defendant’s ability to pay those fees. Reversed as to the orders requiring payment of attorney fees, otherwise Affirmed.