Argued and submitted May 28, 2014
Multnomah County Circuit Court, 101034072, Kelly Skye, Judge.
Mary M. Reese, Senior Deputy Public Defender, argued the cause for appellant. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Leigh A. Salmon, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before Ortega, Presiding Judge, and DeVore, Judge, and Garrett, Judge.
[266 Or.App. 375] DEVORE, J.
Defendant appeals a judgment of conviction for five counts of unlawful use of a weapon with a firearm, ORS 166.220;  ORS 161.610(2). He assigns error to the trial court's denial of his request to merge the guilty verdicts for the five counts, pursuant to the " anti-merger" statute, ORS 161.067(1). Defendant makes two arguments that his guilty verdicts should have merged. First, he argues that, when he fired five shots toward a group of people, there was a single class of persons constituting " one victim." Second, defendant argues that there was no sufficient pause in his conduct. We review for legal error and are bound by the trial court's factual findings, provided there is sufficient evidence in the record to support them. State v. Cale, 263 Or.App. 635, 637, 330 P.3d 43 (2014). As it happens here, the state concedes that the trial court did not make factual findings as to merger. The state urges that we remand so that the trial court may address the issue in the first instance. We agree with the state, vacate the judgment, and remand for reconsideration of merger. Otherwise, we affirm.
For purposes of our review, the following circumstances appear to be uncontroverted. Defendant drove to downtown Portland to pick up two women, Martin and Sison. He met them in a parking lot directly across the street from Qube, a club at the southwest corner of First Avenue and Pine Street. Meanwhile, a group of unknown people left Qube, at the insistence of the club's bouncers. Three of the men in the group crossed the street and [266 Or.App. 376] loitered near defendant in the middle of a parking lot. A bouncer standing outside Qube suspected that there might be a fight. An aggressive exchange ensued, during which defendant drew a pistol from his waistband. Martin grabbed defendant and pulled him into the back seat of the car, but, before she could begin driving away, one of the men from the group shattered the back window. Seven to ten members of the group stood together at the northwest street corner as defendant's car began to leave. The car stopped at an angle in the intersection. Defendant leaned out of the window and fired three shots toward the group standing near the corner. Immediately thereafter, defendant fired another two shots as the car sped away. Defendant was charged with several crimes including five counts of unlawful use of a weapon with a firearm.
At defendant's bench trial, a Qube bouncer testified as to the timing and number of shots that defendant fired. He explained that there were " three shots consecutively and then the vehicle started to pull away and there [were] two more shots fired as the
vehicle was pulling away. * * * Bang, bang, bang ... bang, bang." A 9-1-1 recording that included the sounds of the gunshots was consistent with the bouncer's recollection. The trial court made a credibility finding in favor of the bouncer's testimony, found that defendant fired five shots, and convicted defendant of multiple counts, including five counts of unlawful use of a weapon with a firearm.
In preparation for sentencing, defendant submitted a memorandum contending, among other things, that the guilty verdicts for unlawful use of a weapon should merge. The anti-merger statute, ORS 161.067, provides in relevant part:
" (2) When the same conduct or criminal episode, though violating only one statutory provision, involves two or more victims, there are as many separately ...