State v. Thompson

(1) ORS 161.485(2) provides “[a] person shall not be convicted of more than one [attempt] offense . . . for conduct designed to commit or to culminate in the commission of the same crime.” The application of ORS 161.485 is “akin to merger,” because a defendant can be guilty of “multiple inchoate crimes pertaining to a single substantive offense but cannot have more than one such conviction entered.” State v. Kimbrough, 364 Or 66, 73, 431 P3d 76 (2018). (2) ORS 161.067(1), provides that guilty verdicts may not merge if “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.” The difference between first-degree robbery and second-degree robbery is that first-degree robbery requires more than second-degree robbery, preventing a downward merger into second-degree robbery. See State v. Burris, 270 Or App 512, (2015). (3) An error is plain when, among other thing, it is “obvious and not reasonable in dispute, and apparent on the record without requiring the court to choose among competing inferences. State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013).

Defendant appealed a judgment of multiple convictions. Defendant assigned five errors. First, he argued that the trial court erred by failing to merge the guilty verdicts for attempted assault into a single conviction. Second, Defendant argued the trial court erred by failing to merge the guilty verdicts for second-degree and first-degree robbery into a single conviction. For the third, fourth, and fifth assignments of error, Defendant argued that the trial court erred by accepting the guilty verdicts relating to the charged firearm offenses, because he did not possess the firearm during the robbery. ORS 161.485(2) provides “[a] person shall not be convicted of more than one [attempt] offense . . . for conduct designed to commit or to culminate in the commission of the same crime.” Defendant argued that because all the attempted assault counts arose out of a single, continuous incident against a single victim, that would have culminated in a single assault. The State argued that each attempted assault count required a different material element and thus precluded merger of the guilty verdicts. The Court found that Defendant’s attempted assault offenses constituted a unity of time, location, and intent in a single course of conduct. Under ORS 161.067(1), guilty verdicts may not merge if “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.” The State argued that the offenses cannot merge, because a different count of second-degree robbery contains the unique element of committing robbery while “aided by another.” The Court found the elements of second-degree robbery lacked any distinctive element from the elements of first-degree robbery, so they required a merger of the guilty verdicts. The Court reversed and remanded for the first two assignments of error and affirmed for the third, fourth, and fifth assignments of error.