State v. Campbell

204 P.3d 118, 226 Or. App. 467, 2009 Ore. App. LEXIS 137

Opinion

PER CURIAM

Defendant appeals from his conviction on two counts of unlawful possession of a firearm, which were based, respectively, on ORS 166.250(l)(a) and ORS 166.250(l)(b), 1 arguing that the trial court erred in failing to merge the two convictions. The state concedes that the trial court so erred. Specifically, the state acknowledges that

“[t]he scope, history, and evolution of the [two] provisions demonstrate that the legislature intended to create a single crime of unlawful possession of a firearm by concealment. For merger purposes, ORS 166.250(l)(a) and (l)(b) constitute a single ‘statutory provision’ and offenses merge when, as here, a defendant violates both subsections by possessing a single firearm in the same criminal episode by concealing the firearm on his person while in a vehicle.”

(Emphasis in original.) The state’s concession is well founded, see State v. White, 341 Or 624, 147 P3d 313 (2006), and we accept it. See also State v. Lopez-Lorenzo, 226 Or App 269, 203 P3d 299 (2009); State v. Merrick, 224 Or App 471, 197 P3d 624 (2008).

Reversed and remanded with instructions to merge convictions for unlawful possession of a firearm and for resentencing; otherwise affirmed.

1 ORS 166.250 provides, in part:

“(1) * * * [A] person commits the crime of unlawful possession of a firearm if the person knowingly:

“(a) Carries any firearm concealed upon the person; [or]

“(b) Possesses a handgun that is concealed and readily accessible to the person within any vehiele[.]”