State v. King, 322 P.3d 597

Defendant was convicted of third-degree assault (ORS 163.165(l)(e)) and misdemeanor fourth-degree assault (ORS 163.160(l)(a)) based on a bar fight video showing multiple attacks.
The victim subdued defendant, then defendant’s friend attacked the victim; defendant resumed by hitting with a bar stool and kicking the victim.
Video of the incident was admitted at trial; defendant and friend fled and were arrested.
At sentencing, the court placed separate sentences for the two counts, and the parties debated merger; the court noted the video’s impact and discussed the counts.
Defense urged merger of the two convictions; the prosecutor suggested they might merge; the court ultimately did not merge the counts.
Defendant appeals, arguing merger was required under ORS 161.067(3); the State contends there was a sufficient pause between assaults to permit separate convictions.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether ORS 161.067(3) requires merger of the two counts	Sullivan: merger argued; court should merge.	Bisecting assaults are same incident without sufficient pause.	No merger; sufficient pause existed between assaults.
Whether there was a sufficient pause between the assaults to permit separate convictions	Pause present due to defendant’s friend intervening and victim’s restraint.	No meaningful pause; attacks continued with renewed force.	There was a sufficient pause; separate convictions affirmed.
Whether the issue was properly preserved for appeal	Record shows trial court understood merger issue; preservation adequate.	Did not cite ORS 161.067(3) explicitly; preservation lacking.	Preservation adequately shown; merger issue preserved.

State v. Sullivan, 234 Or App 38 (2010) (preservation of merger argument by brief statements)
State v. Walker, 350 Or 540 (2011) (trial practice realities may permit abbreviated merger arguments)
State v. Sanders, 185 Or App 125 (2002) (no evidence of pause between assaults; no merger)
State v. Watkins, 236 Or App 339 (2010) (brief interval between attacks insufficient for pause)
State v. Aitken, 255 Or App 17 (2013) (sufficient pause between multiple assaults; allowed separate convictions)