State v. Burris, 270 Or. App. 512

Victim Drake arranged to sell methadone; at a Plaid Pantry defendant pointed a gun, Anderson took Drake’s pills and phone and fled.
Defendant convicted of: first-degree robbery with a firearm (Count 1); two counts of second-degree robbery with a firearm (Counts 2 and 3) charging alternatives under ORS 164.405(1)(a) (apparent weapon) and (1)(b) (aided by another present); unlawful use of a weapon; felon in possession.
Jury found guilt on all counts; the trial court merged the two second-degree robbery verdicts into a single second-degree robbery conviction but declined to merge those with the first-degree robbery conviction.
Defendant appealed, arguing (1) jury instruction error (not reviewed because harmless here) and (2) that robbery convictions should merge under ORS 161.067 because elements overlap when each count included the aggravating "with a firearm" allegation under ORS 161.610(2).
The appellate court had to decide whether each robbery provision required proof of an element the others did not, and whether adding the "with a firearm" aggravator changed the merger analysis.

Issue	Plaintiff's Argument (State)	Defendant's Argument (DeVore)	Held
Whether the robbery convictions merge under ORS 161.067(1)	Each robbery statute requires proof of an element the others do not, so convictions do not merge	First-degree and second-degree robbery elements are subsumed by second-degree robbery (aided-by-another) once all counts include "with a firearm," so they should merge	Convictions do not merge; each provision contains at least one unique element
Effect of charging "with a firearm" under ORS 161.610(2) on merger	"With a firearm" is an aggravating element creating a separate element; it does not make distinct offenses identical	Adding "with a firearm" makes the weapon elements equivalent across counts, producing subsumption and merger	"With a firearm" does not eliminate unique elements (operability for first-degree); merger still improper

State v. Phillips, 354 Or. 598, 317 P.3d 236 (harmless-error analysis where alternates do not present separate competing factual theories)
State v. White, 346 Or. 275, 211 P.3d 248 (legislature intended second-degree robbery to be a single crime)
State v. Flores, 259 Or. App. 141, 313 P.3d 378 ("with a firearm" is an element in aggravation)
State v. Colmenares-Chavez, 244 Or. App. 339, 260 P.3d 667 (first- and second-degree robbery treated as separate provisions under ORS 161.067)
State v. Blake, 348 Or. 95, 228 P.3d 560 (merger test framed in terms of element subsumption)
State v. Noe, 242 Or. App. 530, 256 P.3d 166 (merger when all elements of one offense are subsumed by another)
State v. Riehl, 188 Or. App. 1, 69 P.3d 1252 (second-degree robbery under (1)(a) can cover unarmed actors)
State v. Mustain, 66 Or. App. 367, 675 P.2d 494 (first-degree robbery requires proof of an operable, presently capable deadly weapon)