Merger of UUW with (Attempted) Murder

by: Ryan Scott • January 28, 2026 • no comments

In a footnote in today's Bock opinion, the COA wrote:

4 UUW is not generally a lesser included offense of attempted aggravated murder, because it requires proof of the use of a “dangerous or deadly weapon,” which is not an element of attempted aggravated murder. However, in cases such as this one in which the counts of attempted aggravated murder included that defendant used a firearm as an additional material element, UUW may be a lesser included offense as it was here. See ORS 161.610(2) (use or threatened use of a firearm may be pleaded in the accusatory instrument and proved at trial as an element of aggravation).

Not only then is the most common theory of UUW a lesser-included of Attempted Murder w/ a firearm (assuming same victim), the two counts were merge in the same way a lesser-included mergers with a greater offense.

The same applies to murder w/ a firearm and UUW. Note that it does not apply to every theory of UUW.

For whatever reason, a lot of attorneys who handle murder cases miss this easy and slam-dunk argument. I assume on some level, it's because if a defendant is convicted of murder and UUW after trial, even the most ignorant judge will run the two counts concurrently. The additional conviction for UUW wouldn't increase the sentence or the PPS.

But on a most basic level, I believe fewer convictions is better than more convictions. And if it takes a 30-second argument to get one fewer convictions, just do it. Even if there will be absolutely no chance of any collateral impact once the defendant gets out of prison, who knows what DOC policies -- either now or in the future -- would be impacted by the number of convictions. And getting into the habit of thinking about merger and how it applies will help the attorney recognize the issue in cases where fewer convictions really will make a difference.