State v. Black ( 2022 )

263
Submitted March 28; convictions for second-degree intimidation (Count 1) and
menacing (Count 2) reversed and remanded for merger of verdicts on Counts
1 and 2, remanded for resentencing, otherwise affirmed June 8; petition for
review denied November 3, 2022 (370 Or 455)
STATE OF OREGON,
Plaintiff-Respondent,
v.
MICHAEL JAMES BLACK,
Defendant-Appellant.
Multnomah County Circuit Court
19CR31012; A173776
512 P3d 866
Steffan Alexander, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Matthew Blythe, Deputy Public Defender, Office
of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Christopher Page, Assistant Attorney
General, filed the brief for respondent.
Before Tookey, Presiding Judge, and Egan, Judge, and
Kamins, Judge.
PER CURIAM
Convictions for second-degree intimidation (Count 1)
and menacing (Count 2) reversed and remanded for merger
of verdicts on Counts 1 and 2; remanded for resentencing;
otherwise affirmed.
264 State v. Black
PER CURIAM
Defendant appeals a judgment of conviction for
second-degree intimidation, ORS 166.155(1)(c)(A) (2017),
amended by Or Laws 2019, ch 553, § 1 (Count 1),1 and men-
acing, ORS 163.190 (Count 2). Defendant was charged with
both offenses based on an incident in which defendant yelled
a racial slur at the 14-year-old victim, M, then told M, “I’m
going to blow your head off,” and walked inside his house,
after which M, fearing that defendant was going inside the
house to retrieve a firearm, fled the scene. Defendant now
appeals, raising two assignments of error. We reverse and
remand for merger of guilty verdicts on Counts 1 and 2.
First Assignment of Error. In his first assignment of
error, defendant challenges his conviction for second-degree
intimidation, arguing that ORS 166.155(1)(c)(A) (2017) is
facially unconstitutional under Article I, section 8, of the
Oregon Constitution. After the state charged defendant with
second-degree intimidation, defendant did not demur to that
charge or otherwise argue that the statute was unconsti-
tutionally overbroad, and he was subsequently convicted of
that charge at a bench trial. On appeal, defendant argues
that the range of expression prohibited by ORS 166.155
(1)(c)(A) (2017) includes constitutionally protected expression
and, therefore, is unconstitutionally overbroad.
The argument advanced in defendant’s unpreserved
first assignment of error is foreclosed by our recent hold-
ings in State v. Smith, 319 Or App 388, 510 P3d 217 (2022),
and State v. Sorrell, 319 Or App 518, 510 P3d 904 (2022).
See Sorrell, 319 Or App at 521 (“[A]s construed in Smith,
ORS 166.155(1)(c)(A) (2017) is not unconstitutionally over-
broad under Article I, section 8,” because it “limits its
reach to acts that inflict a sudden sense of danger, an
actual fear of imminent personal violence.” (Internal
quotation marks omitted.)); Smith, 319 Or App at 394(“[T]he second-degree intimidation statute * * * is intended
to protect individuals from alarm that is created by threats
1
The legislature amended ORS 166.155 in 2019. Or Laws 2019, ch 553, § 1.
That law applies to crimes committed on or after July 15, 2019. Because the con-
duct for which defendant was convicted occurred on May 10, 2019, we refer to and
apply the 2017 version of the statute in this opinion.
Cite as 320 Or App 263 (2022) 265
of serious physical injury and for that reason, is facially
constitutional.”).
Second Assignment of Error. In his second assign-
ment of error, defendant argues that, if the second-degree
intimidation statute is construed to accord with Article I,
section 8, of the Oregon Constitution, then the trial court
erred when it declined to merge the guilty verdict for that
offense with the guilty verdict for menacing. More precisely,
defendant contends that, given the specific allegations in
this case, the elements of menacing are completely sub-
sumed into second-degree intimidation, such that the for-
mer would be a lesser-included offense of the latter.
To determine whether guilty verdicts for two sep-
arate statutory offenses must be merged into a single con-
viction, “the controlling question is whether each statute
defining the relevant criminal offenses requires proof of
an element that the other does not.” State v. Jackson, 313
Or App 708, 714, 495 P3d 171, rev den, 369 Or 110 (2021).
If either of the statutes at issue “specify alternate ways
of establishing the commission of the offense, we also
take into account the elements alleged in the indictment.”
Id. at 713.
There are various ways of committing the offense of
second-degree intimidation, but in this case, the indictment
specifically alleged that defendant “did * * * intentionally
and because of the defendant’s perception of the race, color,
religion, sexual orientation, disability, and national origin
of [M], subject [M] to alarm by threatening to inflict serious
physical injury upon [M].” The offense of menacing occurs
“if by word or conduct the person intentionally attempts to
place another person in fear of imminent serious physical
injury.” ORS 163.190. The state concedes that, given the
specific way the state alleged those crimes in this case, “if
this court construes the second-degree intimidation statute
to comport with the limitations of Article I, section 8, then
the guilty verdicts for second-degree intimidation [Count 1]
and menacing [Count 2] should merge,” because “such a
construction would make clear that the two crimes do not
require different levels of intimidation.”
266 State v. Black
In light of Smith’s construction of ORS 166.155
(1)(c)(A) (2017)—and in light of the specific way in which
the state alleged the offenses in this case, as noted above—
we agree with and accept the state’s concession;2 the guilty
verdicts on Counts 1 and 2 flow from a single criminal epi-
sode, and the elements of menacing are subsumed within
the elements of second-degree intimidation as charged in
this case. See State v. Burris, 270 Or App 512, 517, 348 P3d
338 (2015) (“[C]onvictions for conduct in a criminal episode
that violates two or more statutory provisions merge if all
of the elements in one provision are subsumed into the ele-
ments of the other provision.” (Discussing ORS 161.067.)).
Convictions for second-degree intimidation (Count 1)
and menacing (Count 2) reversed and remanded for merger
of verdicts on Counts 1 and 2; remanded for resentencing;
otherwise affirmed.
2
We agree with the state’s contention that, because second-degree intimida-
tion can be alleged in different ways, merger of a guilty verdict for that offense
with a guilty verdict for menacing will not always be required. For instance, where
the second-degree intimidation allegation is based not on “[i]ntentionally * * *
threatening * * * [t]o inflict serious physical injury,” ORS 166.155(1)(c)(A), but is
instead based on “[t]amper[ing] or interfere[ing] with property, having no right to
do so * * * with the intent to cause substantial inconvenience,” ORS 166.155(1)(a).
In that circumstance, second-degree intimidation would, as alleged, require an
element that the offense of menacing does not (i.e., “tampering or interfering with
property”), and the offense of menacing would require an element that second-
degree intimidation does not (i.e., “plac[ing] another person in fear of imminent
serious physical injury”); consequently, in that circumstance—in contrast to the
circumstances in this case—the guilty verdicts for those two offenses would not
merge.