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State v. Oldham

Court of Appeals of Oregon

December 4, 2019

STATE OF OREGON, Plaintiff-Respondent,
v.
VINCENT EDWARD OLDHAM, Defendant-Appellant.

          Submitted July 30, 2018

          Lane County Circuit Court 16CR30179, Jay A. McAlpin, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Sara F. Werboff, Deputy Public Defender, Office of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jacob Brown, Assistant Attorney General, fled the brief for respondent.

          Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction entered upon his pleas of guilty to unlawful delivery of a controlled substance to a minor and application of a controlled substance to the body of another person under 18 years of age. Defendant argues that the trial court erred by failing to merge the guilty findings on those charges into a single conviction because each element of the delivery charge is subsumed by those necessary to prove the application charge. The state contends that the acts of delivering and applying a controlled substance are mutually exclusive and, therefore, merger is precluded. Held: The trial court erred. Merger was required because proof that defendant was guilty of the application charge necessarily proved that he was guilty of the delivery charge.

         Convictions on Counts 1 and 2 reversed and remanded for entry of judgment of conviction for one count of application of a schedule I controlled substance to the body of another person under the age of 18; remanded for resentencing; otherwise affirmed.

         [301 Or.App. 83]DEHOOG, P.J.

         Defendant appeals a judgment of conviction entered upon his pleas of guilty to unlawful delivery of a schedule I controlled substance to a minor, ORS 475.906 (Count 1), and application of a schedule I controlled substance to the body of another person under the age of 18, ORS 475.910[1] (Count 2). In his first assignment of error, defendant argues that the trial court erred by failing to merge its guilty findings for Counts 1 and 2 as required by ORS 161.067(1). Defendant argues that merger is required because all of the elements necessary to prove the delivery charge are subsumed by those necessary to prove the application charge. The state contends that the guilty findings cannot merge, because the relevant statutory scheme demonstrates that the act of delivering a controlled substance cannot, as defined, be established by proof of applying a controlled substance to the body of another. We agree with defendant that the trial court was required to merge the guilty findings on Counts 1 and 2 into a single conviction. Accordingly, we reverse and remand for resentencing.[2]

         "We review the sentencing court's determination of whether to merge verdicts for errors of law." State v. Ham, 300 Or.App. 304, 306, __P.3d__(2019). "Furthermore, we state the facts underlying that ruling in the light most favorable to the state; that is, in the light most favorable to the trial court's conclusion that merger was not required." State v. Dearmitt, 299 Or.App. 22, 24, 448 P.3d 1163 (2019).

         The charges at issue arose from a single interaction between defendant and a 17-year-old victim. The state provided a concise description of their interaction during defendant's sentencing hearing:

"What happened was [the victim] had some meth, and she asked the defendant to shoot her up. He supplied the [301 Or.App. 84] needle. He suppled the rig to cut off the circulation to her arm. He used a * * * paintbrush and a piece of rope, something like that.
"He also used a needle that was inappropriate for the task. It was a larger needle gauge than most of the surgical needles that are used to inject methamphetamine. Partly due to that and partly for other reasons that's not clear, when he ...

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