State v. Middleton

383 P.3d 441, 281 Or. App. 369, 2016 Ore. App. LEXIS 1146

• Court: Court of Appeals of Oregon
• Decided: September 28, 2016
• Docket: 130934253; A158326
• Status: Published

Opinion

PER CURIAM

Defendant was charged with three counts of first-degree custodial interference (Counts 1, 2, and 4), ORS 163.257, and one count of second-degree custodial interference (Count 3), ORS 163.245. After a jury found defendant guilty on all counts, the court merged Counts 1 and 2 into a single conviction for Count 1, and merged Counts 3 and 4 into a single conviction for Count 4. In her first and second assignments of error, defendant contends that the trial court erred in denying her motions for judgment of acquittal on Counts 2 and 4. Both of those counts required proof that defendant exposed her daughter “to a substantial risk of physical injury.” Defendant asserts that the state failed to produce sufficient evidence as to either count that she had exposed her daughter to a substantial risk of physical injury. The state, for its part, concedes that the trial court should have “granted an acquittal on the first-degree custodial interference charges on counts 2 and 4 and allowed those counts to proceed only on the lesser-included second-degree custodial interference charges.” Thus, in the state’s view, we should reverse and remand for the judgment to reflect:

“(1) an acquittal on the first-degree custodial interference charges on counts 2 and 4;

“(2) guilty verdicts on the lesser-included second-degree custodial interference charges on counts 2 and 4;

“(3) a conviction for first-degree custodial interference on count 1;

“(4) the fact that the second-degree custodial interference guilty verdict on count 2 merges with count 1;

“(5) a conviction for second-degree custodial interference on count 3; and

“(6) the fact that the second-degree custodial interference guilty verdict on count 4 merges with count 3.”

(Footnote omitted.) We accept the state’s concession and agree with the state’s proposed disposition. See ORS 163.245 (defining second-degree custodial interference); ORS 163.257 (defining first-degree custodial interference as a violation of ORS 163.245 plus an additional element);¹ State v. Cook, 163 Or App 578, 581, 989 P2d 474 (1999) (an offense is a lesser-included of another if “one offense is necessarily included within the other because the elements of the former are subsumed in the latter”).

Reversed and remanded for entry of a judgment consistent with this opinion and for resentencing.

1 Pursuant to ORS 163.257,

“(1) A person commits the crime of custodial interference in the first degree if the person violates ORS 163.245 and:

“(a) Causes the person taken, enticed or kept from the lawful custodian or in violation of a valid joint custody order to be removed from the state; or

“(b) Exposes that person to a substantial risk of illness or physical injury.”