State v. Mustafa

FILED: June 15, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

HARUN ABDUL-JALIL MUSTAFA,
aka Harun Abdul Mustafa,

Defendant-Appellant.

Multnomah County Circuit Court
090431658
A144169

Angel Lopez, Judge.

Submitted on May 06, 2011.

Peter Gartlan, Chief Defender, and Erica Herb, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent.

Before Haselton, Presiding Judge, and Brewer, Chief Judge, and Armstrong, Judge.

PER CURIAM

Convictions on Count 2 and Count 5 reversed and remanded with instructions to enter a judgment of conviction for one count of second-degree assault; remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant, who was convicted following a bench trial of second-degree assault (Count 2), ORS 163.175, and unlawful use of a weapon (Count 5), ORS 166.220,(1) appeals. On appeal, defendant assigns error to the trial court's failure "to merge defendant's guilty verdicts for assault in the second degree and unlawful use of a weapon." A discussion of the facts would not benefit the bench, the bar, or the public. The state concedes that, under State v. Ryder, 230 Or App 432, 216 P3d 895 (2009), "the trial court should have merged defendant's conviction for unlawful use of a weapon into his conviction for second-degree assault." Under the circumstances of this case, we agree and accept the state's concession.

Convictions on Count 2 and Count 5 reversed and remanded with instructions to enter a judgment of conviction for one count of second-degree assault; remanded for resentencing; otherwise affirmed.

1. Defendant and two others were charged in a single indictment. Only Counts 2, 4, and 5 of that indictment concerned defendant. Defendant was acquitted of second-degree disorderly conduct (Count 4), ORS 166.025.