State v. Wright

No. 196               March 27, 2024                     635

   This is a nonprecedential memorandum opinion
    pursuant to ORAP 10.30 and may not be cited
         except as provided in ORAP 10.30(1).

          IN THE COURT OF APPEALS OF THE
                  STATE OF OREGON

                 STATE OF OREGON,
                  Plaintiff-Respondent,
                            v.
              HARLAND JOSEPH WRIGHT,
                  Defendant-Appellant.
              Klamath County Circuit Court
                  20CR51200; A177796

   Alycia E. Kersey, Judge.
   Submitted October 27, 2023.
  Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kyle Krohn, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
   Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Michael A. Casper, Assistant Attorney
General, filed the brief for respondent.
  Before Tookey, Presiding Judge, Egan, Judge, and Kamins,
Judge.
   TOOKEY, P. J.
   Convictions on counts 1 and 2 reversed and remanded for
entry of judgment of conviction for one count of first-degree
kidnapping; remanded for resentencing; otherwise affirmed.
636                                            State v. Wright

        TOOKEY, P. J.
         Defendant appeals a judgment convicting him, after
a bench trial, of several counts—including three counts of
first-degree kidnapping, ORS 163.235, and one count of
second-degree assault, ORS 163.175—raising five assignments of error. We reverse defendant’s convictions on Counts
1 and 2 and remand for entry of a judgment of conviction
for one count of first-degree kidnapping, and we remand for
resentencing. We otherwise affirm defendant’s convictions.
          A person commits the crime of second-degree assault
when the person “[i]ntentionally or knowingly causes physical injury to another by means of a deadly or dangerous
weapon[.]” ORS 163.175(1)(b). In his first assignment of
error, defendant contends that the trial court erred when
it denied his motion for a judgment of acquittal of second-degree assault, arguing that the evidence was legally insufficient for the trier of fact to find the “physical injury” element of that crime. Under ORS 161.015(7), “physical injury”
means either “impairment of physical condition or substantial pain.”
         At trial, the victim testified that defendant compelled him to get into a body bag and then stabbed him
through the bag, cutting his wrist. The court heard the
victim’s testimony and also observed a scar on the victim’s
wrist and determined that the evidence was sufficient to
infer that the victim had suffered “substantial pain and/or
impairment of bodily condition.”
         “[V]iew[ing] the evidence in the light most favorable
to the state,” we conclude that the evidence was legally sufficient to allow the trial court, “making reasonable inferences,” to have found that defendant’s stabbing of the victim
resulted in a physical injury. See State v. Guzman, 

, 

 (2016) (setting forth the standard of review) (internal quotation marks omitted). Thus,
we reject defendant’s contention in his first assignment of
error that the court erred in denying defendant’s motion for
a judgment of acquittal of assault in the second degree.
        In his second assignment of error, defendant contends that the trial court erred when it failed to merge the
Nonprecedential Memo Op: 

 (2024)            637

court’s guilty verdicts on Counts 1 and 2 for first-degree
kidnapping, arising from the same conduct involving the
same victim, but based on alternative theories under ORS
163.235(1)(c)—“caus[ing] physical injury to the victim”—
and (d)—“terroriz[ing] the victim[.]” That argument is
unpreserved. However, we accept the state’s concession that
the trial court plainly erred, and we agree that merger was
required for Counts 1 and 2. See State v. Odnorozhenko, 

, 

 (2008) (“[F]ailure to merge
separate first-degree kidnapping convictions for the same
conduct involving the same victim constitutes error apparent on the face of the record.”). Thus, we reverse defendant’s
convictions on Counts 1 and 2 and remand for entry of a
judgment of conviction for one count of first-degree kidnapping on those counts.
         Defendant raises three additional unpreserved
assignments of error, relating to sentencing, that we need
not address in light of our remand for resentencing. State v.
Manning, 

, 

 (2019), rev den,

 (2020) (“Because we must remand for resentencing to correct [one] error, we do not reach defendant’s assignment regarding [a sentencing error], which the trial court
will have an opportunity to address in the first instance on
remand.”).
        Convictions on Counts 1 and 2 reversed and remanded
for entry of judgment of conviction for one count of first-degree kidnapping; remanded for resentencing; otherwise
affirmed.