State v. Fox

779 P.2d 197, 98 Or. App. 356, 1989 Ore. App. LEXIS 1047

Opinion

PER CURIAM

Defendant appeals his convictions for burglary in the first degree, ORS 164.225, attempted aggravated felony murder with a firearm, ORS 163.095, attempted murder with a firearm, ORS 163.115, and attempted assault in the first degree with a firearm. ORS 163.185. The state concedes that the attempted murder and attempted assault counts merge with the attempted aggravated felony murder count, and we remand for entry of a single judgment of conviction on the latter charge. State v. Cloutier, 286 Or 579, 596 P2d 1278 (1979); State v. Lavender, 68 Or App 514, 682 P2d 823, rev den 297 Or 547 (1984); see also ORS 161.062(1).

Defendant also urges merger of the burglary and attempted aggravated felony murder counts, but he did not present that issue to the trial court. The question is a close one; therefore, any error is not egregious, and we will not consider it for the first time on appeal. State v. McNamer, 80 Or App 418, 420, 722 P2d 51 (1986).

Defendant assigns error to the trial court’s exclusion of expert testimony regarding the reliability of eyewitness identifications, but we find no abuse of discretion in the trial court’s ruling that the proffered testimony would not be helpful to the jury. OEC 702; State v. Stringer, 292 Or 388, 639 P2d 1264 (1982).

Remanded for entry of judgment convicting defendant only for burglary in the first degree and attempted aggravated felony murder with a firearm; otherwise affirmed.