State v. Black
320 Or. App. 263
| Or. Ct. App. | 2022Background
- On May 10, 2019, defendant yelled a racial slur at a 14-year-old (M), told M “I’m going to blow your head off,” then walked into his house; M fled fearing defendant would retrieve a firearm.
- Defendant was charged with second-degree intimidation (ORS 166.155(1)(c)(A) (2017)) (Count 1) and menacing (ORS 163.190) (Count 2) and convicted at a bench trial.
- Defendant did not demur or raise a facial overbreadth challenge at trial to the intimidation statute; he raised that challenge on appeal.
- On appeal defendant argued (1) ORS 166.155(1)(c)(A) is facially overbroad under Article I, §8 of the Oregon Constitution, and (2) the menacing conviction is a lesser-included offense that must merge with second-degree intimidation as charged here.
- The state conceded that, given the court’s constitutional construction of the intimidation statute and the way the indictment alleged the offenses, the two convictions should merge.
- The court reversed and remanded for merger of verdicts and resentencing; otherwise affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether ORS 166.155(1)(c)(A) (2017) is facially overbroad under Article I, §8 | The statute, as construed in prior decisions, is limited to threats creating a sudden sense of danger and is not overbroad | The statute criminalizes protected expression and is therefore facially overbroad | Foreclosed by State v. Smith and State v. Sorrell; statute not facially overbroad as construed |
| Whether the menacing conviction must merge with second-degree intimidation as charged here | Conceded that, under the statute’s constitutional construction and the indictment’s allegations, menacing is subsumed and should merge | Menacing is a lesser-included offense and should merge into the intimidation conviction | Court accepted the concession: convictions reversed and remanded for merger and resentencing; noted merger depends on how intimidation is alleged |
Key Cases Cited
- State v. Smith, 319 Or App 388 (2022) (construed ORS 166.155(1)(c)(A) to cover only threats causing a sudden sense of danger; not overbroad)
- State v. Sorrell, 319 Or App 518 (2022) (followed Smith and held the statute is not unconstitutionally overbroad)
- State v. Jackson, 313 Or App 708 (2021) (merger test: compare statutory elements and consider indictment allegations)
- State v. Burris, 270 Or App 512 (2015) (merger doctrine: convictions in a single episode merge if all elements of one offense are subsumed by the other)