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State v. Jones

Court of Appeals of Oregon

April 8, 2015

STATE OF OREGON, Plaintiff-Respondent,
v.
KYLE IRVIN WAYNE JONES, Defend-Appellant

Argued and Submitted June 26, 2013

Jackson County Circuit Court. 100170FE. Raymond B. White, Judge.

Convictions on Counts 2 through 9 for first-degree arson reversed and remanded with instructions to enter a judgment of conviction for two counts of first-degree arson and for resentencing; otherwise affirmed.

Jedediah Peterson, Deputy Public Defender, argued the cause for appellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services.

Jennifer S. Lloyd, Attorney in Charge, argued the cause for respondent. On the brief were Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Janet A. Klapstein, Senior Assistant Attorney General.

Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Edmonds, Senior Judge.

OPINION

Page 347

[270 Or.App. 255] ARMSTRONG, P. J.

Defendant appeals a judgment of conviction entered after a jury trial for one count of attempted aggravated murder (Count 1), ORS 161.405; ORS 163.095, and eight counts of first-degree arson (Counts 2 through 9), ORS 164.325. On appeal, defendant first assigns error to the trial court's refusal to consent to defendant's waiver of his right to a jury trial. Because we conclude that defendant did not preserve the argument that he raises on appeal, we reject that assignment of error. In four assignments of error, defendant argues that the trial court plainly erred in failing to merge the guilty verdicts. We agree with and accept the state's concession that the trial court plainly erred in failing to merge defendant's guilty verdicts on the eight counts of first-degree arson into two counts of first-degree arson. However, we cannot reach defendant's additional merger arguments as plain error because that error is not apparent on the face of the record. Finally, we reject defendant's remaining assignments of error regarding nonunanimous jury verdicts without discussion. See State v. Cobb, 224 Or.App. 594, 198 P.3d 978 (2008), rev den, 346 Or. 364, 213 P.3d 578 (2009). Accordingly, we reverse and remand defendant's convictions on eight counts of first-degree arson with instructions to enter a judgment of conviction for two counts of first-degree arson and for resentencing. We otherwise affirm.

In January 2010, defendant and four others set a duplex house on fire in retribution for Sewell's assault of one of defendant's companions. At the time they set the fire, there were eight occupants of the duplex--Sewell and his grandmother, Marsh, were in number 124 and six people were in number 122. The record does not clearly reflect who owned or rented each side of the duplex. Defendant was charged with one count of attempted aggravated murder of Sewell and eight counts of first-degree arson--one count for each occupant of the duplex.

Before defendant's scheduled trial, defendant sought to waive his right to a jury trial, to which the state did not raise an objection. The trial court did not make a decision on the record whether to consent to the waiver, but stated that it would promptly do that:

[270 Or.App. 256] " [DEFENSE COUNSEL]: Your Honor, the defense is ready. We will waive a jury in this case.
" * * * *

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