State v. Foster

Court of Appeals of Oregon

State v. Foster

307 P.3d 568, 257 Or. App. 757, 2013 WL 3964274, 2013 Ore. App. LEXIS 908

CourtCourt of Appeals of Oregon

DecidedJuly 31, 2013

Docket104488; A148553

StatusPublished

This text of 307 P.3d 568 (State v. Foster) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Foster, 307 P.3d 568, 257 Or. App. 757, 2013 WL 3964274, 2013 Ore. App. LEXIS 908 (Or. Ct. App. 2013).

Pincite

Opinion

PER CURIAM

Defendant appeals judgments of conviction for two counts of assault in the second degree, ORS 163.175, arising out of a single act of throwing a beer glass into the face of the victim. He argues that the trial court plainly erred in failing to merge the guilty verdicts on those counts into a single conviction for second-degree assault. Defendant’s two convictions were based on ORS 163.175(1)(a), which provides that a person commits second-degree assault if the person “[intentionally or knowingly causes serious physical injury to another[,]” and ORS 163.175(1)(b), which provides that the crime is committed if the person “[intentionally or knowingly causes physical injury to another by means of a deadly or dangerous weapon [.]” He argues that the counts should have merged because, similarly to ORS 164.405, which defines a single crime of second-degree robbery, see State v. White, 346 Or 275, 211 P3d 248 (2009) (so concluding), the text, context, and legislative history of ORS 163.175 reflects that the legislature intended to create a single crime of second-degree assault, and, therefore, ORS 163.175(1)(a) and (b) are not separate statutory provisions for purposes of the merger statute. See ORS 161.067(1) (“When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.”).¹

The state concedes that ORS 163.175(1)(a) and (b) are the same statutory provision for purposes of ORS 161.067(1) and, therefore, merger was required. Consistently with the Supreme Court’s analysis in White, we agree with and accept the state’s concession. We also agree with defendant and the state that the error was “apparent on the record,” ORAP 5.45(1), and, for the reasons expressed in State v. Ryder, 230 Or App 432, 435, 216 P3d 895 (2009), we exercise our discretion to correct it. See also State v. Hathaway, 207 Or App 716, 717, 143 P3d 545, rev den, 342 Or 254 (2006) (noting that both the Supreme Court and this court have consistently exercised discretion to address plainly erroneous failures to merge convictions). Accordingly, we [759]*759reverse and remand for entry of a single judgment of conviction for second-degree assault and for resentencing.

Convictions on Counts 1 and 2 reversed and remanded with instructions to enter a single conviction for second-degree assault and for resentencing; otherwise affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

PER CURIAM

Defendant appeals judgments of conviction for two counts of assault in the second degree, ORS 163.175, arising out of a single act of throwing a beer glass into the face of the victim. He argues that the trial court plainly erred in failing to merge the guilty verdicts on those counts into a single conviction for second-degree assault. Defendant’s two convictions were based on ORS 163.175(1)(a), which provides that a person commits second-degree assault if the person “[intentionally or knowingly causes serious physical injury to another[,]” and ORS 163.175(1)(b), which provides that the crime is committed if the person “[intentionally or knowingly causes physical injury to another by means of a deadly or dangerous weapon [.]” He argues that the counts should have merged because, similarly to ORS 164.405, which defines a single crime of second-degree robbery, see State v. White, 346 Or 275, 211 P3d 248 (2009) (so concluding), the text, context, and legislative history of ORS 163.175 reflects that the legislature intended to create a single crime of second-degree assault, and, therefore, ORS 163.175(1)(a) and (b) are not separate statutory provisions for purposes of the merger statute. See ORS 161.067(1) (“When the same conduct or criminal episode violates two or more statutory provisions and each provision requires proof of an element that the others do not, there are as many separately punishable offenses as there are separate statutory violations.”).¹

The state concedes that ORS 163.175(1)(a) and (b) are the same statutory provision for purposes of ORS 161.067(1) and, therefore, merger was required. Consistently with the Supreme Court’s analysis in White, we agree with and accept the state’s concession. We also agree with defendant and the state that the error was “apparent on the record,” ORAP 5.45(1), and, for the reasons expressed in State v. Ryder, 230 Or App 432, 435, 216 P3d 895 (2009), we exercise our discretion to correct it. See also State v. Hathaway, 207 Or App 716, 717, 143 P3d 545, rev den, 342 Or 254 (2006) (noting that both the Supreme Court and this court have consistently exercised discretion to address plainly erroneous failures to merge convictions). Accordingly, we [759]*759reverse and remand for entry of a single judgment of conviction for second-degree assault and for resentencing.

Convictions on Counts 1 and 2 reversed and remanded with instructions to enter a single conviction for second-degree assault and for resentencing; otherwise affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

307 P.3d 568, 257 Or. App. 757, 2013 WL 3964274, 2013 Ore. App. LEXIS 908, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-foster-orctapp-2013.

Opinion

Related

Cite This Page — Counsel Stack