State v. Campbell

204 P.3d 118 (2009) 226 Or. App. 467

STATE of Oregon, Plaintiff-Respondent,
v.
Edward Patrick CAMPBELL, Defendant-Appellant.

076075; A136907.

Court of Appeals of Oregon.

Submitted February 6, 2009. Decided March 11, 2009.

Peter Gartlan, Chief Defender, Appellate Division, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Rolf C. Moan, Acting Solicitor General, and Doug M. Petrina, Senior Assistant Attorney General, filed the brief for respondent.

Before HASELTON, Presiding Judge, and ARMSTRONG, Judge, and ROSENBLUM, Judge.

PER CURIAM.

Defendant appeals from his conviction on two counts of unlawful possession of a firearm, which were based, respectively, on ORS 166.250(1)(a) and ORS 166.250(1)(b),^[1] arguing that the trial court erred in failing to merge the two convictions. The state concedes that the trial court so erred. Specifically, the state acknowledges that

"[t]he scope, history, and evolution of the [two] provisions demonstrate that the legislature intended to create a single crime of unlawful possession of a firearm by concealment. For merger purposes, ORS 166.250(1)(a) and (1)(b) constitute a single 'statutory provision' and offenses merge when, as here, a defendant violates both subsections by possessing a single firearm in the same criminal episode by concealing the firearm on his person while in a vehicle."

(Emphasis in original.) The state's concession is well founded, see State v. White, 341 Or. 624, 147 P.3d 313 (2006), and we accept it. See also State v. Lopez-Lorenzo, 226 Or.App. 269, 203 P.3d 299 (2009); State v. Merrick, 224 Or.App. 471, 197 P.3d 624 (2008).

Reversed and remanded with instructions to merge convictions for unlawful possession of a firearm and for resentencing; otherwise affirmed.

NOTES

[1] ORS 166.250 provides, in part:

"(1) * * * [A] person commits the crime of unlawful possession of a firearm if the person knowingly:

"(a) Carries any firearm concealed upon the person; [or]

"(b) Possesses a handgun that is concealed and readily accessible to the person within any vehicle[.]"