No. 685 December 28, 2023 783

IN THE COURT OF APPEALS OF THE 

STATE OF OREGON

ERIN ELIZABETH DORN-PRIVETT,

Petitioner-Appellant,

v.

Nichole BROWN, 

Superintendent,

 Coffee Creek Correctional Institution,

Defendant-Respondent.

Washington County Circuit Court

19CV41932; A176150

Patricia A. Sullivan, Senior Judge.

Submitted March 28, 2023.

Margaret Huntington and O’Connor Weber LLC filed the 

brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, 

Solicitor General, and Robert A. Koch, Assistant Attorney 

General, filed the brief for respondent.

Before Ortega, Presiding Judge, and Powers, Judge, and 

Hellman, Judge.

HELLMAN, J.

Affirmed.
784 Dorn-Privett v. Brown

HELLMAN, J.

Petitioner appeals from a judgment that denied her 

petition for post-conviction relief. In her sole assignment 

of error, petitioner contends that the post-conviction court 

erred when it concluded that her trial counsel did not provide inadequate and ineffective assistance of counsel after 

counsel failed to argue for merger of petitioner’s convictions 

under ORS 161.067(1). For the reasons below, we affirm.

Petitioner’s convictions were based on an incident 

in which she drove her car at her neighbors during a dispute. For that conduct, a jury found petitioner guilty of three 

counts of attempted first-degree assault, ORS 163.185, three 

counts of unlawful use of a weapon, ORS 166.220, three 

counts of menacing, ORS 163.190, three counts of recklessly 

endangering another person, ORS 163.195, and seconddegree disorderly conduct, ORS 166.025. At sentencing, the 

trial court merged the guilty verdicts for unlawful use of a 

weapon with the verdicts for first-degree attempted assault. 

Petitioner’s counsel further argued that the menacing and 

reckless endangering verdicts should also merge with the 

first-degree attempted assault verdict; however, that argument was not explicitly based on ORS 161.067(1). The trial 

court rejected petitioner’s argument regarding merger of 

those verdicts.

In her post-conviction case, petitioner argued that 

trial counsel failed to exercise reasonable professional skill 

and judgment because counsel did not raise ORS 161.067(1) 

as the legal basis for the trial court to merge the verdicts 

for menacing, ORS 163.190, and recklessly endangering 

another person, ORS 163.195, with the verdict for attempted 

first-degree assault, ORS 161.405 and ORS 163.185. The 

post-conviction court denied relief because it determined 

that petitioner did not prove “that an argument for merger 

under ORS 161.067(1) would have been successful had Trial 

Counsel argued it at sentencing.”

We review the post-conviction court’s denial of relief 

for legal error and are bound by the court’s “findings of historical fact * ** if there is evidence in the record to support 

them.” Green v. Franke, 357 Or 301, 312, 350 P3d 188 (2015). 
Cite as 329 Or App 783 (2023) 785

A petitioner is entitled to post-conviction relief under ORS 

138.530 when “there has been a ‘substantial denial’ of a petitioner’s ‘rights under the Constitution of the United States, 

or under the Constitution of the State of Oregon, or both, 

and which denial rendered the conviction void.’” Green, 357 

Or at 311 (quoting ORS 138.530(1)(a)). Although we interpret 

and apply Article I, section 11, of the Oregon Constitution 

independently of the Sixth Amendment to the United States 

Constitution, “the standards for determining the adequacy 

of legal counsel under the state constitution are functionally equivalent to those for determining the effectiveness of 

counsel under the federal constitution.” Montez v. Czerniak, 

355 Or 1, 6-7, 322 P3d 487, adh’d to as modified on recons, 

355 Or 598, 330 P3d 595 (2014).

To be entitled to post-conviction relief based on a 

claim of inadequate assistance of counsel, a petitioner must 

prove that trial counsel failed to exercise reasonable professional skill and judgment and that the petitioner suffered 

prejudice from counsel’s inadequacy. Id. (Article I, section 

11); Strickland v. Washington, 466 US 668, 686, 104 S Ct 

2052, 80 L Ed 2d 674 (1984) (Sixth Amendment).

Although there is no case law holding that the 

crimes of menacing and recklessly endangering another 

person merge with attempted first-degree assault under 

ORS 161.067, the law does not require a petitioner to cite 

a directly controlling case to establish the inadequacy of 

counsel. Indeed, in Burdge v. Palmateer, 338 Or 490, 499, 

112 P3d 320 (2005), the Supreme Court recognized that “[i]n 

at least some cases, a lawyer’s failure to present an unsettled question may be inadequate assistance of counsel.” As 

explained in Burdge, “[e]ven if the meaning of a statute 

remains unsettled, the statute may so obviously offer possible benefits to a defendant that any lawyer exercising reasonable professional skill and judgment would raise it.” Id.

at 500.

This is not one of those cases. As we explain below, 

petitioner’s guilty verdicts do not merge; accordingly, trial 

counsel did not fail to exercise reasonable professional skill 

and judgment when she did not argue for merger under ORS 

161.067(1). Raising an argument that is ultimately legally 
786 Dorn-Privett v. Brown

incorrect would not have “obviously” provided any benefit to 

petitioner, even if the law was unsettled at the time.

Under ORS 161.067(1), referred to as the “antimerger” statute, “[w]hen the same conduct or criminal episode violates two or more statutory provisions and each 

provision requires proof of an element that the others do 

not, there are as many separately punishable offenses as 

there are separate statutory violations.” See State v. Barton, 

304 Or App 481, 489, 468 P3d 510 (2020) (explaining that 

the court “look[s] to the anti-merger statute, ORS 161.067” 

to determine “whether multiple violations of the law must 

merge”). Petitioner argues that the elements of menacing 

and recklessly endangering another person are subsumed 

into the elements of attempted first-degree assault and, 

therefore, that they necessarily merge under ORS 161.067(1).

Beginning with attempted first-degree assault, 

“[a] person is guilty of an attempt to commit a crime when 

the person intentionally engages in conduct which constitutes a substantial step toward commission of the crime.” 

ORS 161.405(1). Petitioner’s attempt convictions were 

charged under ORS 163.185(1)(a), first-degree assault, 

which requires that a person “[i]ntentionally cause[] serious 

physical injury to another by means of a deadly or dangerous weapon[.]” Accordingly, attempted first-degree assault 

requires that a defendant intentionally engage in conduct 

that constitutes a substantial step toward causing serious 

physical injury to another by means of a deadly or dangerous weapon. State v. O’Hara, 152 Or App 765, 768, 955 P2d 

313, rev den, 327 Or 305 (1998).

Turning to menacing, a person violates ORS 163.190 

“if by word or conduct the person intentionally attempts to 

place another person in fear of imminent serious physical 

injury.” On the one hand, while menacing requires proof of 

the defendant’s intent to put the victim “in fear of imminent 

serious physical injury,” attempted first-degree assault has 

no such requirement. Compare ORS 163.190(1) with ORS 

163.185(1)(a). In fact, it may be possible to commit attempted 

first-degree assault without the victim ever perceiving the 

danger, let alone fearing imminent physical injury. Cf. State 

v. Rice, 307 Or App 274, 278, 476 P3d 961 (2020) (applying 
Cite as 329 Or App 783 (2023) 787

ORS 161.067(1) and explaining that the crime of menacing 

includes the element of placing the victim in fear of imminent serious physical injury while the offense of pointing a 

firearm at another “can be committed without the victim 

even knowing that the gun was pointed or aimed in the victim’s direction”).

On the other hand, while attempted first-degree 

assault requires that a defendant take a substantial step 

toward causing serious physical injury to another, menacing does not. Compare ORS 163.185 and ORS 161.405(1), 

with ORS 163.190(1). In fact, menacing can occur through 

a defendant’s mere use of words—without any conduct that 

constitutes a step toward causing serious physical injury. 

See ORS 163.190(1) (providing that menacing may occur “by 

word or conduct”).

Because menacing and attempted first-degree 

assault each require proof of an element that the other does 

not, they do not merge. There was thus no obvious benefit 

to petitioner from raising the argument and counsel did not 

fail to “exercise reasonable professional skill and judgment” 

when she did not argue for merger under ORS 161.067(1).

Turning to recklessly endangering another person, 

ORS 163.195(1), that crime requires proof that “the person 

recklessly engages in conduct which creates a substantial risk 

of serious physical injury to another person.” As described 

above, attempted first-degree assault requires that the 

defendant intentionally engage in conduct that constitutes 

a substantial step toward causing serious physical injury 

to another by means of a deadly or dangerous weapon. ORS 

163.185; ORS 161.405(1). To constitute a “substantial step” 

toward commission of a crime, “the defendant’s conduct must 

(1) advance the criminal purpose charged and (2) provide 

some verification of the existence of that purpose.” State v. 

Kimbrough, 364 Or 66, 73, 431 P3d 76 (2018) (internal quotation marks omitted). Put another way, an attempt crime 

focuses on the purpose of the individual’s conduct, not the 

outcome of that conduct.

On the one hand, attempted first-degree assault 

requires proof of an intentional mental state, whereas 
788 Dorn-Privett v. Brown

reckless endangerment requires proof of only a reckless 

mental state. While proof of an intentional mental state 

establishes a reckless mental state, the reverse is not true. 

ORS 161.115(3); see, e.g., State v. Chapman, 209 Or App 771, 

779, 149 P3d 284 (2006), rev den, 342 Or 473 (2007) (applying the distinction).

On the other hand, reckless endangerment requires 

that the defendant’s conduct create a substantial risk of 

serious physical injury to another person, which attempted 

first-degree assault does not require. Compare ORS 163.195 

with ORS 163.185 and ORS 161.405(1). Conduct can constitute a substantial step toward causing serious physical 

injury without creating a substantial risk of that injury. 

The inchoate crime of attempt does not require that the outcome of the crime attempted—in this case, causing serious 

physical injury to another as required for the crime of firstdegree assault, ORS 163.185—be likely or even possible; it 

only requires that petitioner take steps with the criminal 

purpose of achieving that outcome.

As was true of menacing and attempted first-degree 

assault, because recklessly endangering another person 

and attempted first-degree assault each require proof of an 

element that the other does not, they do not merge. Again, 

because raising a debatable, yet ultimately legally incorrect 

argument does not provide any benefit to a petitioner, it is 

not “so obvious” that “any lawyer exercising reasonable professional skill and judgment” would have argued for merger 

in petitioner’s case.

Because we determine that trial counsel’s representation did not fall below constitutional standards, we do not 

address prejudice.

Affirmed.