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State v. Wooten

Court of Appeals of Oregon

August 2, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
JAMES WOOTEN, Defendant-Appellant.

          Submitted June 30, 2017

         Multnomah County Circuit Court 14CR23236 Gregory F. Silver, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Carson L. Whitehead, Assistant Attorney General, fled the brief for respondent.

          Before Tookey, Presiding Judge, and Hadlock, Chief Judge, and Egan, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for various crimes, including four counts of second-degree robbery (Counts 3 through 6). He argues that the trial court plainly erred by entering separate convictions for robberies that were committed against the same victim, in the same incident, but charged under the different legal theories outlined in ORS 164.405(1)(a) and (b).

         Held:

         The trial court plainly erred by failing to merge the guilty verdicts on counts of second-degree robbery that related to conduct toward one victim in a single incident, but that were charged under different legal theories, and it is an appropriate exercise of discretion to correct the error.

         Convictions on Counts 3 and 5 reversed and remanded for entry of a judgment of conviction for one count of second-degree robbery; convictions on Counts [287 Or.App. 179] 4 and 6 reversed and remanded for entry of a judgment of conviction for one count of second-degree robbery; remanded for resentencing; otherwise affirmed.

          TOOKEY, P. J.

         Defendant appeals a judgment of conviction for one count of first-degree robbery (Count 2), four counts of second-degree robbery (Counts 3 through 6), one count of second-degree assault (Count 7), two counts of third-degree assault (Counts 8 and 9), and two counts of coercion (Counts 10 and 11). We write to address only defendant's second assignment of error, in which he argues that the trial court plainly erred by failing to merge the guilty verdicts on Counts 3 and 5, and the guilty verdicts on Counts 4 and 6. We reject defendant's remaining assignments of error related to motions for judgment of acquittal without written discussion.

         Defendant was convicted of four counts of second-degree robbery under ORS 164.405, which provides, in part:

"(1) A person commits the crime of robbery in the second degree if the person violates ORS ...

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