State v. Redwing , 222 Or. App. 200 ( 2008 )

192 P.3d 856 (2008) 222 Or. App. 200

STATE of Oregon, Plaintiff-Respondent,
v.
Rodney James REDWING, Defendant-Appellant.

05C43763; A131589.

Court of Appeals of Oregon.

Submitted August 8, 2008. Decided September 3, 2008.

Rankin Johnson IV, Portland, and Law Office of Rankin Johnson IV, LLC filed the brief for appellant. Rodney James Redwing filed the supplemental brief pro se.

Hardy Meyers, Attorney General, Mary H. Williams, Solicitor General, and Douglas F. Zier, Assistant Attorney General, filed the brief for respondent.

Before EDMONDS, Presiding Judge, and WOLLHEIM, Judge, and RIGGS, Senior Judge.

PER CURIAM.

Defendant was convicted of, among other crimes, two counts of first-degree kidnapping, ORS 163.235. The kidnapping counts involved the same conduct and the same victim and were based on defendant's violation of two separate paragraphs of the first-degree kidnapping statute, namely, ORS 163.235(1)(c) (kidnapping with a purpose to cause physical injury to the victim) and ORS 163.235(1)(d) (kidnapping with a purpose to terrorize the victim or another person). On appeal, defendant argues that those separate paragraphs of ORS 163.235(1) set forth alternative theories of proving a single offense, and that the trial court should have merged the two convictions into a single conviction for first-degree kidnapping. Defendant acknowledges that he did not raise that issue in the trial court, but nonetheless urges this court to review the error as error apparent on the face of the record. ORAP 5.45(1). The state, in response, concedes that the trial court plainly erred in failing to merge the convictions. State v. Hylton, 210 Or.App. 104, 105-06, 150 P.3d 47 (2006), rev. den., 342 Or. 473, 155 P.3d 51 (2007). We agree and, for the reasons expressed in State v. Valladares-Juarez, 219 Or.App. 561, 564-65, 184 P.3d 1131 (2008), exercise our discretion to correct the error.

In a pro se supplemental brief, defendant argues that the trial court erred in denying his motion for a judgment of acquittal on the kidnapping counts. We reject that assignment of error without discussion.

Convictions for first-degree kidnapping reversed and remanded with instructions to enter a judgment of conviction for one count of first-degree kidnapping reflecting that defendant was convicted on both theories; remanded for resentencing; otherwise affirmed.