State v. Rice

                                      274

 Submitted July 9, 2019; portions of judgment requiring defendant to pay $560
  fine on each count of conviction under ORS 166.190 vacated, remanded for
              resentencing, otherwise affirmed October 21, 2020


                       STATE OF OREGON,
                        Plaintiff-Respondent,
                                  v.
                       SAMUEL LEE RICE,
                       Defendant-Appellant.
                  Clackamas County Circuit Court
                       16CR66661; A166481
                                  

    For pointing a gun at four victims, defendant was charged with and convicted of four counts of menacing, ORS 163.190, and four counts of pointing a
firearm at another, ORS 166.190. On appeal, defendant assigns error to the trial
court’s failure to merge the guilty verdict on each count of pointing a firearm
at another with the guilty verdict on the menacing count associated with the
same victim. Defendant also assigns as plain error the court’s imposition of fines
exceeding the statutory maximum on each count of pointing a firearm at another.
Held: The trial court did not err in failing to merge the verdicts, because each
crime required proof of an element that the other did not. But the trial court
plainly erred in imposing fines that exceeded the statutory maximum under ORS
166.190.
     Portions of judgment requiring defendant to pay $560 fine on each count of
conviction under ORS 166.190 vacated; remanded for resentencing; otherwise
affirmed.



   Thomas J. Rastetter, Judge.
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Mark Kimbrell, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Julia Glick, Assistant Attorney
General, filed the brief for respondent.
   Before Lagesen, Presiding Judge, and DeVore, Judge, and
James, Judge.
   LAGESEN, P. J.
   Portions of judgment requiring defendant to pay $560
fine on each count of conviction under ORS 166.190 vacated;
remanded for resentencing; otherwise affirmed.
Cite as 

 (2020)                             275

        LAGESEN, P. J.
         Too much alcohol turned an amicable October barbecue into a brawl that defendant could not bring himself to
let end. As B (who defendant had attacked with a fire poker
and with whom he then exchanged punches), J, and J’s two
children tried to leave the party in B’s Jeep, defendant came
within 15 feet of the Jeep and pointed his pistol at all of
them.
         For that conduct, defendant was charged with and
convicted of four counts of menacing, in violation of ORS
163.190, and four counts of pointing a firearm at another,
in violation of ORS 166.190. Each count of each offense pertained to one of the four people in the Jeep. On appeal, defendant assigns error to the trial court’s failure to merge the
guilty verdict on each count of pointing a firearm at another
with the guilty verdict on the menacing count associated
with the same victim. Defendant also assigns as plain error
the court’s imposition of a fine exceeding the statutory maximum on each count of pointing a firearm at another. We conclude that the court plainly erred in imposing the too-large
fines and, for that reason, vacate those fines and remand for
resentencing but otherwise affirm.
          In his first four assignments of error, defendant
contends that the trial court erred when it did not merge
the guilty verdict on each count of pointing a firearm at
another with the guilty verdict on the count of menacing the
same victim. Defendant asserts that the offense of pointing
a firearm at another under ORS 166.190 is a lesser-included
offense of menacing under ORS 163.190, so as to require
merger of the verdicts on each pair of counts involving the
same victim. See State v. Gensitskiy, 

, 

 (2019) (“[A] court cannot enter separate convictions
under ORS 161.067(1) for violations of two statutory provisions if the violations are based on the same conduct and one
of the violations is a lesser-included offense of the other.”).
The state responds that defendant did not preserve these
assignments of error. Alternatively, the state argues that
ORS 161.067(1) precludes merger because the offenses of
menacing and pointing a firearm at another each require
proof of an element that the other does not.
276                                              State v. Rice

         We reject the state’s preservation argument. In
arguing against preservation, the state notes, correctly,
that defendant argued to the trial court that his “sentences”
could not be distinct for purposes of “merger law,” and did
not argue that the guilty verdicts should merge. See State
v. Watkins, 

, 344 n 1, 

, rev den,

 (2010) (explaining that guilty verdicts, not convictions or sentences, are what merge under Oregon merger
law). The state contends that this shows that defendant’s
argument was about the propriety of consecutive sentences
and was not about whether the guilty verdicts should merge.
What the state’s point overlooks, however, is that the type
of imprecise and even mistaken “ ‘shorthand’ ” phraseology
employed by defendant in the trial court (his reference to
merger of sentences, that is) has long been a part of Oregon
merger law (including in our own decisions), id. (quoting
State v. Lepierre, 

, 

 (2010)),
but we have not treated imprecision in the vocabulary of
merger as an impediment to the preservation of an issue
about merger otherwise properly raised. Accord State v.
White, 

, 279 n 4, 

 (2009) (noting that
“[t]he parties and the courts below often refer to the issue in
this case as being whether defendant’s ‘convictions’ merge”
but nonetheless addressing the merits of the parties’ merger
argument).
          Beyond that, the trial court’s remarks on the record
reflect that it understood defendant to be arguing for merger
in the proper and usual sense, because, in rejecting defendant’s argument, the court’s analysis traced the antimerger
rule contained in ORS 161.067(1). That provision states:
   “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.”

ORS 161.067(1). Consistent with the analysis demanded
by that provision, the court explained that “it’s the same
act, but it violates two statutes,” and then did not merge
the guilty verdicts. The merger issue is preserved for our
review.
Cite as 

 (2020)                              277

          As for the merits, we review for legal error a trial
court’s merger determinations. State v. White, 

, 

 (2019), rev den, 

 (2020). At
issue is whether ORS 161.067(1) operates to bar merger of
the guilty verdict on the pointing-a-firearm-at-another count
with respect to a particular victim with the guilty verdict on
the menacing count involving the same victim. As its text
indicates, that provision bars merger of guilty verdicts on
separately charged counts based on the same conduct where
each count is based on a separate statutory provision, and
where each relevant statutory provision requires proof of an
element that the other does not. Gensitskiy, 

.
Where, however, “the same conduct violates two statutory
provisions, one of which is a lesser-included offense of the
other, the violations result in a single punishable offense;
that is, they merge.” 

         Here, the parties do not dispute that ORS 163.190
and ORS 166.190 are separate statutory provisions for purposes of ORS 161.067(1). Rather, they dispute whether ORS
166.190 (pointing a firearm at another) is a lesser-included
offense of ORS 163.190 (menacing). In defendant’s view,
menacing under ORS 163.190 entirely subsumes pointing
a firearm at another under ORS 166.190, at least where, as
here, the conduct underlying the menacing charge is based
on threatening conduct with a firearm. In the state’s view,
the plain terms of the respective statutes establish that
each offense requires proof of an element the other does not;
therefore, neither offense is a lesser-included offense of the
other.
         A plain reading of the statutes confirms that the
state is correct.
         ORS 163.190(1), which defines “menacing,” 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.”
         ORS 166.190, which defines the offense of pointing
a firearm at another, provides that a person commits that
offense if the person is “over the age of 12” and “with or without malice, purposely points or aims any loaded or empty
278                                                State v. Rice

pistol, gun, revolver or other firearm, at or toward any other
person within range of the firearm, except in self-defense.”
         As can be seen by comparing the text of those two
statutes, the offense of menacing requires proof of, among
other things, the defendant’s intent to put the victim “in
fear of imminent serious physical injury.” ORS 163.190(1);
State v. Durst, 

, 

 (2012)
(explaining operation of mental state element of menacing).
By contrast, the specification in ORS 166.190 that a person
may commit that offense “with or without malice” makes
clear that proof that the defendant intended to cause the victim to experience fear of imminent personal injury is not an
element of pointing a firearm at another; in fact, the offense
can be committed without the victim even knowing that the
gun was pointed or aimed in the victim’s direction.
         A comparison of the statutory text also demonstrates that pointing a firearm at another requires proof of
at least one element that menacing does not. ORS 166.190
requires proof that the prohibited firearm pointing was
directed at or toward a victim located “within range of the
firearm.” By contrast, ORS 163.190 does not require proof
that the victim of a menacing charge was located within
a particular distance of the defendant. Consequently, ORS
163.190 and ORS 166.190 each require proof of an element
that the other does not. The trial court, therefore, correctly
declined to merge the guilty verdicts in the manner advocated by defendant.
          In his remaining assignments of error, defendant
points out that ORS 166.190 specifies that the maximum
fine for pointing a firearm at another is $500 and argues
that the trial court therefore plainly erred when it imposed
a $560 fine on each of those convictions. The state concedes
that the court plainly erred and, consistent with our practice in similar cases, we exercise our discretion to correct
the erroneously imposed fines. See, e.g., State v. Lee, 

, 

 (2020). The state argues that
we should simply strike the excess amounts from each fine,
but it is not clear to us that that is the choice the trial court
would select. Accordingly, we vacate those portions of the
judgment imposing the challenged $560 fines and remand
Cite as 

 (2020)                                               279

for resentencing. See State v. Tison, 

,

, rev den, 

 (2018) (taking similar
approach under former ORS 138.040 (2015), repealed by Or
Laws 2017, ch 529, § 26).1
        Portions of judgment requiring defendant to pay
$560 fine on each count of conviction under ORS 166.190
vacated; remanded for resentencing; otherwise affirmed.




     1
       For the reasons explained in Tison, former ORS 138.040 (2015) governs our
disposition of this appeal because the judgments on appeal were entered prior to
the effective date of the act repealing that statute. See Tison, 

n 3.