State v. Belcher , 301 Or. App. 168 ( 2019 )

168
Submitted October 29; conviction on Counts 3 through 8 reversed and remanded
for entry of judgment of conviction for three counts of first-degree criminal
mistreatment, otherwise affirmed December 4, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
CHRISTOPHER LEE BELCHER,
Defendant-Appellant.
Multnomah County Circuit Court
17CR12881; A167641
455 P3d 1043
Leslie M. Roberts, Judge.
Frances J. Gray filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Joanna Hershey, Assistant Attorney
General, filed the brief for respondent.
Before Lagesen, Presiding Judge, and DeVore, Judge, and
Powers, Judge.
PER CURIAM
Conviction on Counts 3 through 8 reversed and remanded
for entry of judgment of conviction for three counts of first-
degree criminal mistreatment; otherwise affirmed.
Cite as 301 Or App 168 (2019) 169
PER CURIAM
Defendant appeals a judgment of conviction for two
counts of tampering with a witness, ORS 162.285 (Counts 1
and 2); three counts of first-degree criminal mistreatment,
ORS 163.205 (Counts 3, 5, and 7); three counts of fourth-
degree assault, ORS 163.160 (Counts 4, 6, and 8); and two
counts of harassment, ORS 166.065 (Counts 9 and 10). In
his first assignment of error, defendant argues that the trial
court plainly erred in failing to merge the guilty verdicts
on the fourth-degree assault counts with the correspond-
ing convictions on the first-degree criminal mistreatment
counts. In his second assignment of error, defendant argues
that the court erred in denying his motion for judgment of
acquittal on the two harassment counts. We affirm in part
and reverse in part.
Starting with the second assignment of error, we
conclude that the trial court was correct to deny defendant’s
motion for judgment of acquittal and reject that assignment
of error without further discussion.
With respect to defendant’s first assignment of
error, the state concedes that the trial court plainly erred
when it failed to merge the verdicts on the fourth-degree-
assault counts with the verdicts on the corresponding counts
of first-degree criminal mistreatment. As charged in this
case, the elements of fourth-degree assault are subsumed
into the elements of first-degree criminal mistreatment. See
State v. Smythe, 298 Or App 821, 822, 448 P3d 693 (2019)
(guilty verdicts for conduct in a criminal episode that violate
two or more statutory provisions merge if all of the elements
in one provision are subsumed into the elements of the other
provision). We agree with and accept the state’s conces-
sion that the trial court plainly erred in failing to merge
Counts 4, 6, and 8 into defendant’s convictions on Counts 3,
5, and 7.
For the reasons expressed in State v. Ferguson, 276
Or App 267, 275, 367 P3d 551 (2016), we agree with the par-
ties that it is appropriate to exercise our discretion to cor-
rect the court’s failure to merge the verdicts. See Ailes v.
Portland Meadows, Inc., 312 Or 376, 382 n 6, 823 P2d 956170 State v. Belcher
(1991) (in exercising our discretion, we consider the com-
peting interests of the parties, the nature of the case, the
gravity of the error, and the ends of justice in the particular
case).
Conviction on Counts 3 through 8 reversed and
remanded for entry of judgment of conviction for three counts
of first-degree criminal mistreatment; otherwise affirmed.