Submitted: February 19, 2013.
100612AFE. Jackson County Circuit Court. Timothy Barnack, Judge.
Peter Gartlan, Chief Defender, and Kristin A. Carveth, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Greg Rios, Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Wollheim, Judge, and Schuman, Senior Judge.
[261 Or.App. 651] WOLLHEIM, J.
Defendant, who was convicted of third-degree assault, ORS 163.165(1)(e) and misdemeanor fourth-degree assault, ORS 163.160(1)(a), appeals the judgment of conviction, asserting that the trial court erred in failing to merge the two guilty verdicts into a single conviction. As explained below, we conclude that the trial court properly entered separate convictions. Accordingly, we affirm.
Because defendant was convicted, we state the evidence and all reasonable inferences in the light most favorable to the state. State v. Johnson, 342 Or. 596, 598, 157 P.3d 198 (2007), cert den, 552 U.S. 1113, 128 S.Ct. 906, 169 L.Ed.2d 753 (2008). After defendant and his friends were asked to leave a bar multiple times by one of its employees, defendant punched the employee. The victim managed to subdue defendant, wrestling him to the floor. At that point, one of defendant's friends attacked the victim from behind and began hitting him, and defendant managed to break free. When the victim was able to throw off defendant's friend, defendant then picked up a bar stool and hit the victim with it, after which defendant hit and kicked the victim while defendant's friend choked the victim. Defendant and his friend fled and were subsequently arrested. Most of the fight was recorded on the bar's video system, and the video was introduced into evidence at trial.
Defendant was charged with third-degree assault for causing physical injury to the victim while being aided by another person actually present, ORS 163.165(1)(e), and with fourth-degree assault for having recklessly caused physical injury to the victim, ORS 163.160(1)(a). A jury found defendant guilty of both offenses.
At sentencing, both parties presented arguments in support of the presumptive sentence for the third-degree assault of three years' probation, with the state advocating for the maximum amount of jail time as a condition of probation, and defense counsel advocating for less jail time. The trial court agreed with the state's sentencing recommendation, describing at length the numerous bad choices defendant had made in the course of the events shown on the video. The trial court sentenced defendant to three years of supervised probation, 90 days in jail, and the general [261 Or.App. 652] conditions of probation. The court then asked about the verdict on fourth-degree assault, and the prosecutor stated, " I think they're probably gonna end up merging." Defense counsel stated, " Yeah, Count 2 merges with Count 1, Your Honor." Immediately thereafter, the trial court stated:
" I only see--all I see in my head is you guys beating that guy up and kicking him. I can't get past that, it's just in my head. That video had an effect on me. That's all I see. This guy, man, he's just doing his job, you screwed up his back, he's got a family. His wife has to--I mean, he has a family and a kid. He didn't hit you. He was on top of you trying to restrain you. He wasn't punching * * *. He wasn't punching you. I saw it he was on top of you just holding you down, just holding you down. At that point you should have just stopped. He was just holding you down. You should have stopped your buddy too, which you didn't do. That's 11 bad decisions."
The court then announced that, on the fourth-degree assault verdict, it would sentence defendant to 18 months' bench probation. The court then waived various fees with respect to the fourth-degree assault, but stated that restitution would be imposed " for both counts." The court then indicated that it was contemplating imposing additional jail time on the fourth-degree assault conviction, but ultimately did not do so, telling defendant: " Consider yourself lucky." The judgment similarly reflected that the court imposed a three-year probationary sentence on the third-degree assault conviction and an 18-month probationary sentence on the misdemeanor fourth-degree assault conviction.
On appeal, defendant asserts that ORS 161.067(3) required merger of the guilty verdicts on third- and fourth-degree assault. As an initial matter, we consider whether defendant adequately preserved that issue. As defendant observes, in State v. Sullivan, 234 Or.App. 38, 40, 227 P.3d 1186, modified on recons, 235 Or.App. 177, 230 P.3d 100 (2010), ...