¶1Defendant was convicted of murder, ORS 163.115(l)(a), felony murder, ORS 163.115(l)(b) and robbery in the first degree, ORS 164.415. All three charges arose out of a single incident wherein .the victim was killed during a robbery. The court merged all three convictions and imposed a sentence of life imprisonment with a 25-year minimum term of incarceration pursuant to ORS 163.115(5). Defendant appeals, contending that a photograph of the victim was irrelevant and prejudicial and that the 25-year minimum sentence was excessive and unconstitutional.
¶2 In discussing the two assignments of error it is unnecessary to detail completely the facts of this criminal episode. The victim was shot five times with a small caliber weapon. The photograph objected to was identified by a witness who discovered the body. She testified the photograph depicted the victim as she found him, reclining in a chair with a visible gunshot wound in his head. Defendant’s counsel, in his opening statement, said defendant was not contesting the identity of the victim or the fact he died by criminal means. Defendant argues that because the identity of the victim and the criminal means of his death were not contested, the photograph was irrelevant and, because of its gruesome nature, was prejudicial. The trial court overruled defendant’s objections and admitted the photograph. For the same reasons expressed in State v. Reams, 47 Or App 907, 616 P2d 498 (1980), rev allowed 291 Or 309 (1981), we conclude the trial court did not abuse its discretion in admitting the photograph. Defendant’s second assignment of error challenging imposition of a 25-year minimum sentence pursuant to ORS 163.115(5) is well taken. State v. Shumway, 291 Or 153, 630 P2d 796 (1981).
¶3The conviction and sentence to the Corrections Division for the rest of defendant’s natural life is affirmed. The 25-year minimum sentence imposed is vacated.
¶4Judgment affirmed; sentence modified.