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“When considering merger and interpreting ORS 161.067(1), a court must answer three questions: ‘(1) Did defendant engage in acts that are the same conduct or criminal episode, (2) did defendant’s acts violate two or more statutory provisions, and (3) does each statutory provision require proof of an element that the others do not.’” State v. Serbin, 324 Or App 792, 795 (2023). “If the answer to the first two factors is affirmative, but the answer to the third is negative, merger is required. Id."

Defendant was convicted of strangulation constituting domestic violence (Count 1) and fourth-degree assault constituting domestic violence (Count 2). Defendant argued the trial court plainly erred when it failed to merge Count 1 and Count 2 under ORS 161.067(1). “When considering merger and interpreting ORS 161.067(1), a court must answer three questions: ‘(1) Did defendant engage in acts that are the same conduct or criminal episode, (2) did defendant’s acts violate two or more statutory provisions, and (3) does each statutory provision require proof of an element that the others do not.’” State v. Serbin, 324 Or App 792, 795 (2023). “If the answer to the first two factors is affirmative, but the answer to the third is negative, merger is required. Id." The Court found Counts 1 and 2 were based on the same conduct and violated two statutory provisions. The Court reasoned when the trial court instructed the jury on the element of “constituting domestics violence” under ORS 132.586, the charged offense subsumed all the elements of the misdemeanor assault charge and thus found the trial court erred when merged Counts 1 and 2. Reversed and remanded for merger of guilty verdicts Counts 1 and 2; otherwise affirmed.