Public-domain · open source
OpenJurist

290 Or. App. 713

412 P.3d 1246

State v. Delgado

Court of Appeals of Oregon

Decided March 7, 2018

Court of Appeals of Oregon · decided 2018-03-07

Applies OR 163 § 163.160 · OR 163 § 163.165

Relies on 225 Or. App. 215 - State v. Camacho-Alvarez · Weintraub v. PACIFIC WEST ROOFING · 242 Or. App. 530 - State v. Noe

Decided 2018-03-07

PER CURIAM

¶1*714Defendant was convicted of one count of third-degree assault, ORS 163.165, and one count of fourth-degree assault, ORS 163.160, for punching the victim. On appeal, defendant argues that the evidence was legally insufficient to show that he (as opposed to his codefendant) caused the victim's injuries and that the trial court plainly erred by not acquitting him sua sponte on each of those counts. We reject those claims of error without discussion.

¶2Defendant also argues that the trial court plainly erred by entering two separate convictions, because the count of fourth-degree assault was charged as a lesser-included offense of the third-degree assault count. SeeState v. Noe , 242 Or. App. 530, 532, 256 P.3d 166 (2011) (holding that "convictions for conduct in a criminal episode that violates two or more statutory provisions merge if all of the elements in one provision are subsumed into the elements of the other provision"). The state concedes that the trial court should have entered a single conviction for third-degree assault and that the case must be remanded to correct that error. We agree, accept the concession, and, for the reasons expressed in State v. Camacho-Alvarez , 225 Or. App. 215, 217, 200 P.3d 613 (2009), exercise our discretion to correct the error.

¶3Convictions for third-degree assault and fourth-degree assault reversed and remanded for entry of a single conviction for third-degree assault; remanded for resentencing; otherwise affirmed.

/290/orapp/713 · .json · Public domain