State v. Pogue

412 P.3d 277, 290 Or. App. 452

• Court: Court of Appeals of Oregon
• Decided: February 22, 2018
• Docket: A161594
• Status: Published

Opinion

PER CURIAM

*453Defendant appeals a judgment of conviction for felon in possession of a firearm (Count 1), unlawful use of a weapon (Counts 2 and 3), and menacing (Counts 4 and 5). He assigns error to the trial court's entry of judgment designating Counts 2, 3, and 4 as crimes "constituting domestic violence," ORS 132.586.¹ The state concedes that the trial court's insertion of the phrase "constituting domestic violence" in Counts 2 through 4 was error because the state never alleged that Count 3 was a crime constituting domestic violence and because the state decided not to pursue proof of that element with regard to Counts 2 and 4. We agree, accept the state's concession, and remand for entry of a corrected judgment that deletes all references to the "constituting domestic violence" element from the judgment of conviction. See State v. Neighbors , 283 Or. App. 488, 489, 388 P.3d 1250 (2017). We otherwise affirm defendant's judgment of conviction.²

Remanded for entry of a corrected judgment deleting all references to "constituting domestic violence"; otherwise affirmed.

1 ORS 132.568 provides, in part:

"(2) When a crime involves domestic violence, the accusatory instrument may plead, and the prosecution may prove at trial, domestic violence as an element of the crime. When a crime is so pleaded, the words 'constituting domestic violence' may be added to the title of the crime."

2 Defendant also assigns error to the trial court's jury instruction allowing nonunanimous guilty verdicts. We reject that assignment of error without published discussion.