Submitted on September 27, 2013.
Multnomah County Circuit Court 101234793 Karin Johana Immergut, Judge.
Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Susan G. Howe, Senior Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
Defendant appeals a judgment of conviction for eight counts of first-degree kidnapping, ORS 163.235, and two counts each of menacing, ORS 163.190, strangulation, ORS 163.187, and unlawful use of a weapon, ORS 166.220. He raises 17 assignments of error. With the exception of his contentions relating to merger of the guilty verdicts for first-degree kidnapping, we reject defendant's arguments without discussion.
With respect to kidnapping, the state charged, and the jury found defendant guilty of, four counts of first-degree kidnapping for each of two victims: Counts 1 through 4 pertained to victim NH, with each count representing an alternative theory of kidnapping; Counts 8 through 11 pertained to victim RS, again with each count representing a different theory of the crime. Over defendant's objection, the court entered eight separate convictions for first-degree kidnapping. On appeal, defendant contends that the court erred in failing to merge the verdicts in Counts 1 to 4 into a single conviction for first-degree kidnapping and, similarly, in failing to merge the verdicts in Counts 8 to 11 into a single conviction for first-degree kidnapping. The state concedes the error, and we accept that concession as well founded. State v. Roberts, 239 Or.App. 37, 43, 243 P.3d 155 (2010), rev den, 351 Or 217 (2011); State v. Hylton, 210 Or.App. 104, 105-106, 150 P.3d 47 (2006), rev den, 342 Or 473 (2007).
Convictions for first-degree kidnapping in Counts 1 through 4 reversed and remanded with instructions to enter a judgment of conviction for one count of first-degree kidnapping, reflecting that defendant was found guilty on four theories; convictions for first-degree kidnapping in Counts 8 through 11 reversed and remanded with instructions to enter a judgment of conviction for one count of first-degree kidnapping, ...