State v. Ashley

                                   512

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).
Submitted July 29; conviction on Count 1 reversed and remanded, remanded for
              resentencing, otherwise affirmed August 31, 2022


                     STATE OF OREGON,
                      Plaintiff-Respondent,
                                v.
                 JOSHUA RANDALL ASHLEY,
                      Defendant-Appellant.
                 Josephine County Circuit Court
                      19CR49494; A173963

   Robert S. Bain, Judge. (Judgment)
   Pat Wolke, Judge. (Supplemental Restitution Judgment)
   Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Andrew D. Robinson, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jon Zunkel-deCoursey, Assistant
Attorney General, filed the brief for respondent.
   Before James, Presiding Judge, and Aoyagi, Judge, and
Joyce, Judge.
   JAMES, P. J.
   Conviction on Count 1 reversed and remanded; remanded
for resentencing; otherwise affirmed.
Nonprecedential Memo Op: 

 (2022)            513

        JAMES, P. J.
         Defendant appeals from a judgment of conviction of
one count of attempted murder with a firearm (Count 1),
attempted first-degree assault with a firearm (a lesser-included offense of the charge of attempted murder alleged
in Count 3), and two counts of Unlawful Use of a Weapon
(Counts 2 and 4), raising seven assignments of error. We
reverse in part and affirm in part.
         The state accused defendant of shooting into a
church on a Sunday morning, then, a few days later, shooting
into a crowded dentist’s office. In defendant’s first through
third assignments of error, defendant challenges his conviction for attempted murder, Count 1, by nonunanimous verdict. The state concedes the error, and the concession is well
taken. State v. Ulery, 

, 

 (2020).
The conviction on Count 1 is reversed and remanded.
         Defendant’s fourth through sixth assignments of
error challenge the denial of his motion for judgment of
acquittal, as well as the imposition of a conviction for
attempted first-degree assault as a lesser-included offense
of the attempted murder charge in Count 3. Viewing the
record in the light most favorable to the state, which is
the standard, we conclude that the trial court did not err
in denying defendant’s motions for judgment of acquittal.
Similarly, defendant’s challenge to the imposition of the
lesser-included offense is a variation of his argument as to
acquittal. Defendant argues that “it is obvious that defendant committed that crime only if he intended to injure
someone, and it is obvious that his conduct in firing at the
church was insufficient evidence that he had that intent.”
Again, viewing the record in the light most favorable to the
state, a reasonable jury could find that defendant had the
requisite intent to injure one or more persons.
         In defendant’s seventh assignment of error, he challenges the trial court’s holding a restitution hearing in his
absence. Again, the state concedes the error, and the concession is well taken. State v. Massie, 

, 

 (2003); see also State v. Sidener, 

,

 (2020). Given that this matter is going back for
514                                        State v. Ashley

resentencing, the restitution issues can be addressed anew.
State v. Lobue, 

, 

, rev den, 

 (2020) (restitution hearings “are part of criminal
sentencing”).
       Conviction on Count 1 reversed and remanded;
remanded for resentencing; otherwise affirmed.