State v. Harrison

277 P.3d 623, 249 Or. App. 517, 2012 WL 1419859, 2012 Ore. App. LEXIS 516

• Court: Court of Appeals of Oregon
• Decided: April 25, 2012
• Docket: C091230CR, A144858
• Status: Published

Opinion

PER CURIAM

Defendant, who was convicted of three counts of first-degree assault, one count of third-degree assault, two counts of fourth-degree assault, and various criminal mistreatment offenses, arising out of his abuse of his two-month-old child, appeals, raising two assignments of error. We reject without discussion defendant’s unpreserved contention that the trial court committed plain error in failing to grant a mistrial sua sponte due to the prosecutor’s remarks during closing argument. The state concedes that defendant is correct in his second, preserved, contention that the guilty verdict for one conviction of assault in the fourth degree (Count 10) must merge into one of the guilty verdicts for first-degree assault (Count 6). The state’s concession is well-founded, ORS 161.067; see State v. Sanders, 189 Or App 107, 74 P3d 1105 (2003), rev den, 336 Or 657 (2004) (merger of convictions required where the offenses involved the same act of violence against a single victim and the merged conviction is a lesser included of the more serious offense), and we accept it.

Reversed and remanded with instruction to merge conviction for fourth-degree assault (Count 10) into the conviction for first-degree assault (Count 6); remanded for resentencing; otherwise affirmed.