State v. Mustafa

258 P.3d 1284, 243 Or. App. 553, 2011 Ore. App. LEXIS 847

• Court: Court of Appeals of Oregon
• Decided: June 15, 2011
• Docket: 090431658; A144169
• Status: Published

Opinion

PER CURIAM

Defendant, who was convicted following a bench trial of second-degree assault (Count 2), ORS 163.175, and unlawful use of a weapon (Count 5), ORS 166.220, 1 appeals. On appeal, defendant assigns error to the trial court’s failure “to merge defendant’s guilty verdicts for assault in the second degree and unlawful use of a weapon.” A discussion of the facts would not benefit the bench, the bar, or the public. The state concedes that, under State v. Ryder, 230 Or App 432, 216 P3d 895 (2009), “the trial court should have merged defendant’s conviction for unlawful use of a weapon into his conviction for second-degree assault.” Under the circumstances of this case, we agree and accept the state’s concession.

Convictions on Count 2 and Count 5 reversed and remanded with instructions to enter a judgment of conviction for one count of second-degree assault; remanded for resentencing; otherwise affirmed.

1 Defendant and two others were charged in a single indictment. Only Counts 2, 4, and 5 of that indictment concerned defendant. Defendant was acquitted of secpnd-degree disorderly conduct (Count 4), OES 166.025.