State v. Alvarez, 246 P.3d 26

Defendant Alvarez and an accomplice beat the victim with a metal bat and a metal rod for about seven minutes.
Victim, 16 years old, sustained a head injury causing skull exposure, four surgical staples, and a visible scar five months later.
Defendant was charged with first-degree assault, second-degree assault, and three counts of unlawful use of a weapon; two bat-related counts and two rod-related counts involved separate theories.
The jury convicted on all counts; defense urged merger of bat counts and merger of rod counts under ORS 161.067(1).
The trial court denied the acquittal motion on first-degree assault; on appeal, court affirmed the convictions, rejecting the merger and sufficiency challenges.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the state proved serious physical injury for first-degree assault	State: actual injury created a substantial risk of death or protracted disfigurement.	Alvarez: injury did not create a substantial risk of death; Mayo rule applies.	Juror could find substantial risk; scalp scar also qualifies as protracted disfigurement; first issue rejected.
Whether bat-related unlawful use of a weapon and first-degree assault should merge	State: no merger because elements differ (carrying/possessing a weapon vs. inflicting serious injury).	Alvarez: all elements of unlawful use subsumed in first-degree assault.	No merger; unlawful use contains an element not in first-degree assault.
Whether rod-related unlawful use of a weapon and second-degree assault should merge	State: same analysis as bat counts; separate elements exist.	Alvarez: second-degree assault subsumed by unlawful use.	No merger; elements differ between unlawful use and second-degree assault.

State v. Walraven, 214 Or.App. 645 (2007) (standard for merger focuses on statutory elements, not trial facts)
State v. Sumerlin, 139 Or.App. 579 (1996) (merger analysis uses elements; facts disregarded in element-based test)
State v. Cufaude, 239 Or.App. 188 (2010) (when statute has alternative forms, rely on pleaded elements for merger)
State v. Crotsley, 308 Or. 272 (1989) (method of analyzing alternative forms of crime for merger)
State v. Reed, 101 Or.App. 277 (1990) (dangerous weapon definition and use can be broader than possession)
State v. Mayo, 13 Or.App. 582 (1973) (injury with mere possibility of death is not always 'serious physical injury')
State v. McWilliams, 29 Or.App. 101 (1977) (common experience can inform whether injury created substantial risk)
State v. Ryder, 230 Or.App. 432 (2009) (plain error merger of second-degree assault with unlawful use of a weapon in certain charging forms)