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State v. Urban

Court of Appeals of Oregon

April 2, 2014

STATE OF OREGON, Plaintiff-Respondent,
v.
NATHANIEL DEAN URBAN, Defendant-Appellant

Argued and Submitted February 26, 2014.

Douglas County Circuit Court 10CR1715FE. Ronald Poole, Judge.

David O. Ferry, Senior Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Tiffany Keast, Assistant Attorney General, argued the cause for respondent. With her on the brief were Ellen F. Rosenblum, Attorney General, and Anna M. Joyce, Solicitor General.

Before Duncan, Presiding Judge, and Haselton, Chief Judge.

OPINION

[262 Or.App. 177] PER CURIAM

Defendant appeals from a judgment convicting him of three sexual offenses, arguing that the trial court erred by denying his motions for judgment of acquittal. We reject defendant's arguments without discussion. However, because--as the state points out--there

Page 758

is an error in the judgment, we reverse and remand with instructions to correct that error.

Following a bench trial, the trial court found defendant guilty of attempted first-degree sexual abuse (as a lesser-included offense of the completed crime of first-degree sexual abuse, which was charged in Count 1), attempted first-degree unlawful sexual penetration (as a lesser-included offense of the completed crime of first-degree unlawful sexual penetration, which was charged in Count 2), and attempted first-degree sodomy (as charged in Count 3). The trial court correctly merged the guilty verdicts on Counts 1 and 2 for attempted first-degree sexual abuse and attempted first-degree unlawful sexual penetration, but the judgment of conviction erroneously reflects that the guilty verdicts were merged into a conviction for the completed offense of first-degree unlawful sexual penetration. We therefore remand for entry of a judgment finding defendant guilty of attempted first-degree sexual abuse (Count 1), attempted first-degree unlawful sexual penetration (Count 2), and attempted first-degree sodomy (Count 3), and merger of the guilty verdicts on Counts 1 and 2 into a single conviction of attempted first-degree unlawful sexual penetration.

Reversed and remanded for entry of a corrected judgment finding defendant guilty of attempted first-degree sexual abuse (Count 1), attempted first-degree unlawful sexual penetration (Count 2), and attempted first-degree sodomy (Count 3), and for merger of the guilty verdicts on Counts 1 and 2 into a single conviction of attempted first-degree unlawful sexual penetration; otherwise affirmed.


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