STATE v. QUINTANA (2026)

Defendant appeals a judgment of conviction for unlawful use of a weapon (UUW), ORS 166.220 (Count 1), and menacing, ORS 163.190 (Count 3).¹ On appeal, in his sole assignment of error, defendant claims that the trial court plainly erred under ORS 161.067(1)(a) in failing to merge the guilty verdicts and enter a single conviction. The state responds that the verdicts do not merge, or at least do not obviously merge as necessary for the alleged error to be plain. We agree with the state that any error is not plain and, accordingly, affirm.

“Generally, an issue not preserved in the trial court will not be considered on appeal.” State v. Wyatt, 331 Or 335, 341, 15 P3d 22 (2000). However, we have discretion to correct a “plain” error. ORAP 5.45(1). An error is “plain” when it is an error of law, the legal point is obvious and not reasonably in dispute, and the error is apparent on the record without our having to choose among competing inferences. State v. Vanornum, 354 Or 614, 629, 317 P3d 889 (2013). Whether an error is “plain” is a question of law. State v. Gornick, 340 Or 160, 167, 130 P3d 780 (2006). If we conclude that a plain error occurred, we next consider whether the error was harmless and, if not, whether we should exercise our discretion to correct it. State v. Ortiz, 372 Or 658, 671-72, 554 P3d 796 (2024).

In this case, defendant argues that the verdicts plainly should have merged because each offense does not require proof of an element that the other does not. Under ORS 161.067(1)(a), “[w]hen 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, there are as many separately punishable offenses as there are separate statutory violations.” (Emphasis added.) For merger purposes, we look to the statute for the elements of an offense, not to the specific facts of the case, except that, if there is more than one form of the offense, we may look to the charging instrument to determine the form charged. State v. Cam, 255 Or App 1, 10, 296 P3d 578, rev. den., 354 Or 148 (2013); State v. Noe, 242 Or App 530, 532, 256 P3d 166 (2011). Here, defendant contends that UUW and menacing do not each require proof of an element that the other does not. The state agrees that ORS 161.067(1)(a) is the relevant provision of the anti-merger statute, but it disagrees that UUW and menacing obviously merge.

UUW is defined in ORS 166.220. As charged here, “[a] person commits the crime of unlawful use of a weapon if the person * * * [a]ttempts to use unlawfully against another, or carries or possesses with intent to use unlawfully against another, any dangerous or deadly weapon as defined in ORS 161.015 * * *.” ORS 166.220(1)(a). Meanwhile, menacing is defined in ORS 163.190, which provides that “[a] person commits the crime of menacing if by word or conduct the person intentionally attempts to place another person in fear of imminent serious physical injury.” Those two crimes each appear to require proof of an element that the other does not. UUW requires attempted unlawful use of a dangerous or deadly weapon, or carrying or possession of such a weapon with the intent to use it unlawfully, whereas menacing does not require any attempted or intended use of any weapon. Some menacing may in fact be accomplished with the aid of a deadly or dangerous weapon, but it is not a required element of the offense. Conversely, menacing requires the intent to place the victim in fear of imminent serious physical injury, whereas it is irrelevant to UUW whether the defendant intends to scare the victim, let alone specifically intends to cause fear of imminent serious physical injury. Indeed, UUW may be committed without the victim even being aware that the perpetrator has a weapon.

At present, there is no controlling case law regarding merger of UUW and menacing. Defendant cites State v. Ziska/Garza, 355 Or 799, 334 P3d 964 (2014), but we do not view it as shedding any meaningful light here. The issue on appeal in that case was the meaning of “use” in the UUW statute. Id. at 801. The court held that a person commits UUW by carrying or possessing a weapon with the intent to “use” it “by actually employing it to injure another” or with the intent to “use” it “to threaten or menace another unlawfully.” Id. at 801, 811. The court therefore affirmed the defendants’ convictions, noting the “undisputed” evidence that “each defendant displayed a dangerous or deadly weapon against another person in a manner that threatened the other person with imminent serious physical injury,” which it was “undisputed” was unlawful because it “amounted to menacing under ORS 163.190.” Id. at 811. This case involves an entirely different legal issue—the merger of UUW and menacing—that was not considered in Ziska/Garza. And, as previously mentioned, the merger question turns on the statutory elements of the offenses, rather than one particular way that a weapon may be “used” unlawfully (to menace someone) or the specific facts of a given case. It is therefore irrelevant that, in this case, defendant's unlawful use included menacing.

Given how the crimes of UUW and menacing are defined, and given the lack of any controlling case law, we agree with the state that it is not obvious that UUW and menacing merge. It follows that any error in entering separate convictions on Counts 1 and 3 is not plain.

Affirmed.

FOOTNOTES

1.   Defendant was also charged with a second count of UUW (Count 2) and with fourth-degree assault (Count 4), but the trial court granted defendant's motion for a judgment of acquittal on Count 4, and it reached a not-guilty verdict on Count 2.

AOYAGI, P. J.