Submitted June 17, 2014.
110431520. Multnomah County Circuit Court. Cheryl A. Albrecht, Judge.
Kristin A. Carveth, Deputy Public Defender, argued the cause for appellant. With her on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services.
Greg Rios, Assistant Attorney General, argued the cause for respondent. With him on the briefs were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.
Before DeVore, Presiding Judge, and Haselton, Chief Judge, and Garrett, Judge.
[270 Or.App. 514] DEVORE, P. J.
This criminal case presents a question of merger, under ORS 161.067, the " anti-merger statute." Defendant appeals a judgment of conviction for a number of robbery and weapon offenses. In defendant's first unpreserved assignment of error, he argues that the trial court failed to instruct the jury that it must agree on the material facts comprising one of two alternative versions of first-degree robbery. Without further discussion, we decline to review that assignment for plain error, because the error, if any, was harmless on this record. See State v. Phillips, 354 Or. 598, 608, 317 P.3d 236 (2013) (holding error to be harmless where there were not two separate, competing factual theories and where the act and intent necessary for accomplice liability, on the particular facts, subsumed those of principal liability). In defendant's second assignment of error, he argues that the trial court erred in refusing to merge several of the robbery offenses. We review for legal error, State v. Sanders, 185 Or.App. 125, 129, 57 P.3d 963 (2002), adh'd to as modified on recons, 189 Or.App. 107, 74 P.3d 1105 (2003), rev den, 336 Or. 657, 92 P.3d 122 (2004), and we affirm.
The facts are undisputed. Drake and his mother were homeless. Drake suffered from Crohn's Disease, a chronic intestinal illness, and he kept methadone pills prescribed to manage his pain from the condition. He arranged to sell some of his methadone pills to Anderson. Drake, his mother, and a friend met Anderson and defendant, who was Anderson's cousin, at a MAX stop in Portland. Because police officers were present, the group " walked for quite a ways" to a Plaid Pantry where Drake urged they should make the sale. Defendant drew a gun from his pants and pointed it at Drake, without saying anything. Anderson told Drake to empty his pockets. Drake did so, and Anderson and defendant fled on foot with Drake's pills and his cell phone. Defendant was charged with one count of first-degree robbery with a firearm (Count 1), ORS 164.415 and ORS 161.610(2); two counts of second-degree robbery with a firearm (Counts 2 and 3), ORS 164.405 and ORS 161.610(2); one count of unlawful use of a weapon with a firearm [270 Or.App. 515] (Count 4), ORS 166.220 and ORS 161.610(2); and one count of felon in possession of a weapon with a firearm (Count 5), ORS 166.270 and ORS 161.610(2). As alleged in the indictment, the two counts of second-degree robbery were based on distinct alternatives (1)(a) and (1)(b) permitted by ORS 164.405. That statute provides, in part,
" (1) A person commits the crime of robbery in the second degree if the person violates ORS 164.395 [third-degree robbery] and the person:
" (a) Represents by word or conduct that the person is armed with what purports to be a dangerous or deadly weapon; or
" (b) Is aided by another person actually present."
Under subsection (1)(a) of the statute, Count 2 alleged that defendant was " armed with what purported to be a deadly and dangerous weapon" during the commission of the offense whereas, under subsection (1)(b) of the statute, Count 3 alleged that defendant was " aided by another person actually present" during the commission of the offense. ORS 164.405(1)(a), (1)(b). The state charged each of the counts so as to include " with a firearm" as an aggravating element, ORS 161.610(2). The jury found defendant guilty on all counts as charged.
At the sentencing hearing, defendant argued, among other ...