State v. Epps

296 P.3d 663, 255 Or. App. 290, 2013 WL 549208, 2013 Ore. App. LEXIS 149

• Court: Court of Appeals of Oregon
• Decided: February 13, 2013
• Docket: 10C44332; A146792
• Status: Published

Opinion

PER CURIAM

Defendant appeals a judgment of conviction for two counts of unauthorized use of a vehicle, ORS 164.135, and two counts of possession of a stolen vehicle, ORS 819.300. On appeal, he raises six assignments of error. We reject without discussion defendant’s first four assignments of error, in which he contends that the trial court erred in denying his motion for judgment of acquittal on all of four of the charges. In his fifth and sixth assignments of error, defendant contends that the trial court committed plain error in failing to merge the guilty verdicts for possession of a stolen vehicle with the guilty verdicts for unauthorized use of a vehicle. See State v. Noe, 242 Or App 530, 256 P3d 166 (2011) (guilty verdict for possession of a stolen vehicle merges with guilty verdict for unauthorized use of a vehicle); see also ORAP 5.45; Ailes v. Portland Meadows, Inc., 312 Or 376, 382, 823 P2d 956 (1991) (court has discretion to review unpreserved error of law apparent on the face of the record). The state concedes that the trial court so erred and that, “although defendant’s fifth and sixth assignments of error are unpreserved, this court can review them as plain error.” We agree, accept the state’s concession, and, for the reasons stated in State v. Camacho-Alvarez, 225 Or App 215, 216, 200 P3d 613 (2009), conclude that it is appropriate to exercise our discretion to correct the error in this case.

Reversed and remanded with instructions to merge the guilty verdicts for possession of a stolen vehicle and unauthorized use of a vehicle into two convictions for unauthorized use of a vehicle and for resentencing; otherwise affirmed.