Argued and submitted on February 19, 2013.
Multnomah County Circuit Court 100331053 Kenneth R. Walker, Judge.
Mary M. Reese, Senior Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Doug M. Petrina, Senior Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Duncan, Judge.
SCHUMAN, P. J.
Defendant was convicted of unlawful use of a weapon with a firearm and felon in possession of a firearm with a firearm. As explained below, these awkward and somewhat redundant crime titles result from the fact that unlawful use of a weapon, ORS 166.220,  and felon in possession of a firearm, ORS 166.270,  are both felonies, and ORS 161.610(2) provides that "[t]he use or threatened use of a firearm * * * by a defendant during the commission of a felony" creates an "aggravated * * * crime" that "may be indicated by adding the words 'with a firearm' to the title of the offense." On appeal, defendant contends that the trial court erred in failing to merge the two guilty verdicts into a single conviction for felon in possession of a firearm with a firearm; in the alternative, he argues that, if the convictions do not merge, then the court erred in imposing consecutive sentences. We conclude that the convictions merge and that, therefore, the court erred in imposing consecutive sentences. We therefore reverse and remand.
For purposes of this appeal, only a few facts are relevant, and, because defendant was found guilty by a jury, we recite them in the light most favorable to the state. State v. Johnson, 342 Or 596, 598, 157 P.3d 198 (2007), cert den, 552 U.S. 1113 (2008). Defendant is a felon and, during a heated dispute with an acquaintance, he possessed a handgun and threatened to use it against the acquaintance. As a result, he was charged with, and convicted of, the two crimes described above. After the jury returned its verdict, defendant argued that the two convictions should merge or, if not, that he should receive concurrent sentences. The court rejected both of those arguments. This appeal ensued.
Merger of convictions is governed by ORS 161.067 and case law construing it. The statute provides, in part:
"(1) When 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.
"(2) When the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims.
"(3) When the same conduct or criminal episode violates only one statutory provision and involves only one victim, but nevertheless involves repeated violations of the same statutory provision against the same victim, there are as many separately punishable offenses as there are violations, except that each violation, to be separately punishable under this subsection, must be separated from other such violations by a sufficient pause in the defendant's criminal conduct to afford the defendant an opportunity to renounce the criminal intent[.]"
The state contends that the court properly denied merger based on subsections (1) and (2).
We begin with subsection (1). Although the text of that subsection establishes when the court may not merge, it has been interpreted to imply its converse, that is, when the court must merge: Merger must occur when a defendant's acts constitute the same conduct or criminal episode, violate two or more statutory provisions, and all the elements of one offense are necessarily included in the commission of the other offense. State v. Blake, 348 Or 95, 99, 228 P.3d 560 (2010) ("[I]f one offense contains X elements, and another offense contains X 1 elements, the former offense does not contain an element that is not also found in the latter offense [and] * * * there is only one separately punishable offense."). For purposes of the analysis under subsection (1), the parties agree that defendant's acts constitute a single criminal episode ...