Background
James Luis Quintana was convicted of unlawful use of a weapon under ORS 166.220 and menacing under ORS 163.190. He was acquitted of a second unlawful-use-of-a-weapon charge, and the trial court granted his motion for judgment of acquittal on a fourth-degree-assault charge.
Quintana did not preserve a merger objection in the trial court. On appeal, he argued that the court plainly erred under ORS 161.067(1)(a) by failing to merge the guilty verdicts for unlawful use of a weapon and menacing into a single conviction.
The Court’s Holding
The Oregon Court of Appeals affirmed. It held that any error in entering separate convictions was not plain because it was not obvious that the two offenses merge. The court therefore did not decide definitively whether merger was required.
The court explained that each offense appears to contain an element the other does not. Unlawful use of a weapon requires attempted unlawful use of a dangerous or deadly weapon, or carrying or possessing such a weapon with intent to use it unlawfully; menacing requires no weapon. Menacing, meanwhile, requires an intentional attempt to place another person in fear of imminent serious physical injury, while unlawful use of a weapon does not require an intent to frighten the victim or even the victim’s awareness of the weapon. With no controlling case law resolving merger of these offenses, the alleged error was not obvious and thus was not plain.
Key Takeaways
- The court affirmed separate convictions for unlawful use of a weapon and menacing because any failure to merge them was not plain error.
- Merger under ORS 161.067(1)(a) generally turns on the offenses’ statutory elements, not the particular facts of the defendant’s conduct.
- The decision does not conclusively hold that the two offenses never merge; it holds only that merger was not sufficiently obvious to permit plain-error relief.
Why It Matters
The opinion underscores the difficulty of obtaining merger relief on an unpreserved claim. Even when the same conduct supports both convictions, an appellant must show that the legal requirement to merge is obvious and not reasonably disputed.
For unlawful use of a weapon and menacing, the court identified distinct apparent elements and an absence of controlling merger precedent. Defense counsel seeking merger of those offenses should preserve the issue in the trial court rather than depend on plain-error review.