State v. Bond

When an indictment alleges the “attempts to use unlawfully against another” variant of unlawful use of a weapon (UUW), and not the alternative and disjunctive “or carries or possesses with intent to use unlawfully against another” variant of that offense, failure to merge a count of UUW with a count of first or second-degree assault constitutes plain error.

Defendant appealed convictions for two counts of first-degree assault with a firearm (Counts 1 and 2), one count of second-degree assault with a firearm (Count 3), and one count of unlawful use of a weapon (“UUW”) with a firearm (Count 4).  The convictions arose from a single act of domestic violence against her partner, T.  On appeal, Defendant asserted the trial court erred in failing to merge the verdicts on Counts 2 and 4. Defendant acknowledged the matter was unpreserved, but contended that, consistently with State v. Ryder, 230 Or App 432 (2009), the failure to merge constituted plain error. Under Ryder, when an indictment alleges the “[a]ttempts to use unlawfully against another” variant of UUW, and not the alternative and disjunctive “or carries or possesses with intent to use unlawfully against another” variant of that offense, failure to merge a count of UUW with a count of second-degree assault constitutes plain error. Because Defendant was charged with the former variant of UUW, and because the State did not identify a principled distinction between a conviction for first-degree assault with a firearm and second-degree assault with a firearm in its merger analysis and disposition, the Court concluded it was plain error not to merge the verdicts on Counts 2 and 4. Convictions on Counts 2 and 4 reversed and remanded for entry of a judgment of conviction for one count of assault in the first-degree with a firearm; remanded for resentencing; otherwise affirmed.