State v. Johnson

494                    May 14, 2025              No. 428

        IN THE COURT OF APPEALS OF THE
                STATE OF OREGON

                   STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
               JOSEPH TYLER JOHNSON,
                   Defendant-Appellant.
              Clackamas County Circuit Court
                   21CR03664; A180980

  Jeffrey S. Jones, Judge.
  Submitted November 19, 2024.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Meredith Allen, Deputy Public Defender,
Oregon Public Defense Commission, filed the brief for
appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, Kamins, Judge, and
DeVore, Senior Judge.
  KAMINS, J.
  Affirmed.
Cite as 

 (2025)                              495

        KAMINS, J.
         Defendant appeals a judgment of conviction of
various offenses after he robbed a hardware store and led
police on a high-speed chase. In his only assignment of
error, defendant contends that the trial court erred in not
merging Count 3, unlawful use of a weapon (UUW), with
Count 1, first-degree robbery with a firearm. Reviewing for
legal error, State v. Burris, 

, 

 (2015), we conclude that the trial court did not err and
therefore affirm.
         We summarize the facts in “the light most favorable
to the state; that is, in the light most favorable to the trial
court’s conclusion that merger was not required.” State v.
Dearmitt, 

, 24, 

 (2019). A cashier
at a hardware store noticed that a man, later identified as
defendant, attempted to leave the store holding “stuff” that
he did not pay for. The cashier told defendant, “You can’t steal
that.” Defendant put his hands up, said “[t]hank you,” and
walked out of the store. The cashier called the store manager, SC, and notified him what had just occurred. SC saw
defendant carrying store merchandise out of the store and
asked him for a receipt. Defendant then “took off running”
into the parking lot. SC gave chase, and defendant pulled a
gun out. SC retreated, telling defendant, “Do what you gotta
do man.” Defendant got into an SUV and drove off. Deputies
pursued defendant on Interstate 205 into Washington State.
Once defendant’s SUV ran out of gas, he attempted to flee on
foot before eventually being apprehended.
         Based on that criminal episode and pertinent to
this appeal, defendant was charged with one count each of
first-degree robbery with a firearm and UUW-firearm. In
one assignment of error, defendant contends that the trial
court erred in not merging those verdicts because, according to defendant, all of the elements in UUW-firearm are
subsumed into the elements of first-degree robbery with a
firearm. As explained below, UUW-firearm has a unique
element (unlawfully use against another) that is not subsumed by any elements in first-degree robbery with a
firearm.
496                                           State v. Johnson

                 STATUTORY OVERVIEW
         ORS 161.067(1), the anti-merger statute, provides
that guilty verdicts may not merge if “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.” It is undisputed that the two convictions arose
from the same criminal episode—defendant’s robbery of the
hardware store. The sole dispute is whether UUW-firearm
and first-degree robbery with a firearm require proof of an
element that the other does not. ORS 161.067(1).
         In making that determination, “we examine only
the statutory elements of each offense, not the underlying
factual circumstances recited in the indictment.” State v.
Fujimoto, 

, 

 (2014). However,
“when a statute contains alternative forms of a single
crime,” as is the case with first-degree robbery “we will look
to the indictment to determine which form is charged, and
we use the elements of the charged version in the merger
analysis.” Burris, 

 (citations, internal quotation marks, and ellipses omitted). As such, we start by
examining the elements of UUW and first-degree robbery
“as those crimes are statutorily defined, then consider how
the crimes were charged in this case.” State v. Rhee, 

, 

, rev den, 

 (2015).
        ORS 166.220(1), the statute defining UUW, in relevant part, provides:
      “A person commits the crime of [UUW] if the person:
      “(a) Attempts to use unlawfully against another,
   or carries or possesses with the intent to use unlawfully
   against another, any dangerous weapon ….”
ORS 164.415, the statute defining first-degree robbery,
provides:
   “(1) A person commits the crime of robbery in the first
   degree if the person violates ORS 164.395 [the third-degree
   robbery statute] and the person:
      “(a) Is armed with a deadly weapon;
      “(b) Uses or attempts to use a dangerous weapon; or
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 (2025)                                 497

       “(c) Causes or attempts to cause serious physical injury
   to any person.”
The referenced statute, ORS 164.395, provides:
      “(1) A person commits the crime of robbery in the third
   degree if in the course of committing or attempting to commit theft … the person uses or threatens the immediate
   use of physical force upon another person with the intent of:
       “(a) Preventing or overcoming resistance to the taking
   of the property or to retention thereof immediately after
   the taking; or
      “(b) Compelling the owner of such property or another
   person to deliver the property or to engage in other conduct
   which might aid in the commission of the theft ….”
                 CHARGES IN THIS CASE
         Per the indictment, both counts were charged with
the aggravating firearm enhancement, ORS 161.610(2),
which provides that “[t]he use or threatened use of a firearm, whether operable or inoperable, by a defendant during
the commission of a felony may be pleaded in the accusatory
instrument and proved at trial as an element in aggravation of the crime[.]” Because of that enhancement, the use
or threatened use of a firearm becomes an element that the
state has to prove. See State v. Flores, 

,

 (2013), rev den, 

 (2014) (explaining
that the “proscribed conduct—use or threatened use of a
firearm during the commission of a felony—is expressly designated an element” (emphasis in original)).
         The state charged defendant with first-degree robbery as follows:
       “The defendant … did unlawfully and knowingly,
   while in the course of committing or attempting to commit
   theft, with the intent of preventing and overcoming resistance to defendant’s taking of property and retention of the
   property immediately after the taking, and being armed
   with a deadly weapon, use or threaten the immediate use
   of physical force upon [SC].”
        Accordingly, per the indictment, the state charged
defendant with ORS 164.415(1)(a), therefore, for the purposes of the merger analysis, we disregard the alternative
498                                            State v. Johnson

forms of the offense—in this case, first-degree robbery
ORS 164.415(1)(b) - (c)—because they were not charged or
required to be proven. See State v. Alvarez, 

, 

 (2010), rev den, 

 (2011) (explaining that “we will look to the indictment to determine which
form is charged and use the elements of the charged version
in the merger analysis”). As charged and explained in the
jury instructions, the state had to prove: (1) while in the
course of committing theft of property, (2) defendant threatened the immediate use of physical force upon SC, (3) and
he was armed with a deadly weapon (4) with the intent of
preventing and overcoming resistance to the taking of the
property. Because the state charged defendant with the
aggravating firearm enhancement, the state also had to
prove an additional element: that defendant “threatened
the use of a firearm during the commission of the offense.”
ORS 161.610(2). Flores, 

. That formulation
reflects what the jury had to find in order to convict defendant of first-degree robbery with a firearm. State v. Kuester,

, 

 (2015) (looking to the jury
instructions when conducting merger analysis).
         As to the UUW charge, the state charged defendant
as follows:
      “The defendant … did unlawfully attempt to use, carry
   or possess with intent to use unlawfully against another
   person, a firearm, a deadly weapon.”
         Thus, per the indictment and accompanying jury
instructions, for the crime of UUW, the state had to prove
the following elements: (1) defendant carried or possessed
a firearm (2) with the intent to use it unlawfully against
another person, and (3) per the firearm enhancement, that
defendant “threatened the use of a firearm during the commission of the offense.” ORS 161.610(2).
                          ANALYSIS
         Defendant contends that merger was required
because all of the elements in UUW-firearm are subsumed
with all of the elements in first-degree robbery with a firearm. See State v. Jackson, 

, 

, rev den, 

 (2021) (recognizing that merger is
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 (2025)                            499

required if “elements of one offense are subsumed in the elements of the other offense”). Unenhanced, UUW and robbery do not merge because UUW’s “carrying or possessing a
dangerous weapon” element is not an element in first-degree
robbery, and first-degree robbery’s “using or threatening
the immediate use of physical force upon a person with the
intent of preventing and overcome resistance to the defendant’s taking of property” elements are not found in UUW.
State v. Jeffrey, 

, 

 (2023),
rev den, 

 (2024) (applying similar logic to alternate form of first-degree robbery).
          Defendant contends, however, that the addition of
the firearm enhancement fundamentally changes the elements of both crimes such that the elements of UUW-firearm
are entirely subsumed within the elements of first-degree
robbery-firearm. According to defendant, with the addition
of the firearm enhancement element to first-degree robbery,
the state had to prove that defendant used or threatened the
use of the firearm against another person in order to prove
the offense.
          However, unlike UUW-firearm, first-degree robbery does not require that defendant use or threaten to use
the firearm against another person. Rather, as charged in
this case, first-degree robbery with a firearm required that
defendant be armed with a deadly weapon, that he used
force to overcome or prevent the victim’s resistance, and that
he used or threatened to use a firearm at some point during
the offense. It does not, unlike UUW-firearm, require that
defendant use or threaten to use the firearm against another
person. Indeed, defendant could have used the firearm to
shoot through a locked door during a home invasion robbery and then punch (i.e., use physical force against) the
homeowner to overcome resistance and still be convicted of
first-degree robbery with a firearm as charged in this case.
See, e.g., State v. Dentel, 

, 

(2015) (explaining that felon in possession (FIP)-firearm,
as charged in that case, did not require defendant to use
the firearm “against another person,” an element in UUW-firearm because a defendant could discharge the firearm
without another person present); see also State v. Merrill,
500                                         State v. Johnson

, 

 (2020), adh’d to as modified on recons, 

, 

, rev den, 

 (2021) (explaining that merger is precluded when
it “is possible to prove the elements of an [offense], without
also and necessarily proving all elements of” another offense
(emphasis in original)).
        As charged, UUW-firearm contains an element
(unlawfully use a weapon against another person) that is
not subsumed in any of the elements in first-degree robbery with a firearm. Accordingly, the trial court correctly
declined to merge those two verdicts.
        Affirmed.