State v. Mendosa

775 P.2d 905, 97 Or. App. 263, 1989 Ore. App. LEXIS 716

Opinion

PER CURIAM

Defendant appeals his convictions for conspiracy to deliver a controlled substance (heroin), and two counts of delivering and two counts of possession of a controlled substance (heroin and cocaine). ORS 475.992. He first contends that the court erred in denying his motion for judgment of acquittal. However, there was evidence from which the jury could find the essential elements of each crime beyond a reasonable doubt. He also contends that the court abused its discretion when it denied a pretrial motion for a continuance. We disagree.

Defendant also argues that the court should have merged his conviction for conspiracy to deliver heroin with his conviction for delivery of heroin.¹ The state concedes that, although the issue was not raised below, the two convictions should have been merged. We agree. ORS 161.485(3); State v. Burlew, 95 Or App 398, 399, 768 P2d 447 (1989).

Remanded with instructions to vacate conviction for conspiracy to deliver a controlled substance and for resentencing; otherwise affirmed.

1 Defendant does not contend that the convictions for possession should be merged with the convictions for delivery of controlled substances. See State v. McNamer, 80 Or App 418, 722 P2d 51 (1986).