State v. Gray, 249 P.3d 544

Defendant shot his sister in her shoulder inside the Portland home and was convicted of multiple offenses, including two unlawful use of a weapon counts under ORS 166.220(1).
Count Four alleged unlawful discharge of a firearm within Portland at or toward a person within range without legal authority (ORS 166.220(1)(b)).
Count Five alleged unlawful attempt to use, carry with intent to use, and possess with intent to use a deadly weapon against another (ORS 166.220(1)(a)).
Defendant moved to merge the two counts under ORS 161.067(1), arguing that Count Five was an alternate theory/lesser-included of Count Four.
The trial court declined to merge; on appeal, Crawford controlled whether ORS 166.220(1)(a) and (1)(b) are separate provisions for merger.
The court reaffirmed that ORS 166.220(1)(a) and (1)(b) are separate statutory provisions with distinct elements and legislative purposes, so merger was improper.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Are ORS 166.220(1)(a) and (1)(b) separate provisions for merger purposes?	Gray argues they are the same objective and should merge.	Gray argues they are a single offense unified by a broader objective and thus should merge.	No; they are separate provisions; merger denied.
Is Count Five a lesser-included offense of Count Four requiring merger?	Count Five is encompassed by Count Four as an alternate theory.	Count Four and Count Five contain distinct elements; merger inappropriate.	Each count requires proof of elements not in the other; no merger.

State v. Crawford, 215 Or.App. 544 (2007) (two subsections may be separate statutory provisions; merger denied)
State v. White, 346 Or. 275 (2009) (defines analysis under ORS 161.067(1) and unified objective test)
State v. Parkins, 346 Or. 333 (2009) (applies White framework to merger analysis)
State v. Barrett, 331 Or. 27 (2000) (alternate theories of crime; preservation and merger considerations)
State v. Crotsley, 308 Or. 272 (1989) (separate vs. same offense analysis under merger framework)
State v. Blake, 348 Or. 95 (2010) (elements comparison under ORS 161.067(1); distinct elements imply separate offenses)
State v. Walraven, 214 Or. App. 645 (2007) (instructional on elements and merger considerations)
State v. Sumerlin, 139 Or. App. 579 (1996) (elements-based merger analysis guidance)
State v. Amaya, 336 Or. 616 (2004) (preservation and issue-framing guidance in criminal appeals)
State v. Cufaude, 239 Or. App. 188 (2010) (handling of alternative theories of unlawful use of a weapon; distinguishes when applicable)