State v. Tate
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FILED: January 9, 2013 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Appellant Cross-Respondent, v. WENDELL KENNETH TATE, Defendant-Respondent Cross-Appellant. Clackamas County Circuit Court CR0700655 A144935 Ronald D. Thom, Judge. Argued and submitted on November 27, 2012. Matthew J. Lysne, Assistant Attorney in Charge, Criminal Appeals, argued the cause for appellant-cross-respondent. With him on the opening brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. With him on the answering brief on cross-appeal were John R. Kroger, Attorney General, and Anna M. Joyce, Solicitor General. Marc D. Brown, Deputy Public Defender, argued the cause for respondent-crossappellant. With him on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services. Before Ortega, Presiding Judge, and Haselton, Chief Judge, and Sercombe, Judge. PER CURIAM On appeal, order arresting judgment on Count 1 reversed and remanded, amended judgment vacated and remanded with instructions to reinstate conviction for aggravated murder, and for resentencing; on cross-appeal, affirmed. 1 PER CURIAM 2 A jury convicted defendant of aggravated felony murder, ORS 3 163.095(2)(d); murder, ORS 163.115, and first-degree burglary, ORS 164.225. The trial 4 court later granted defendant's motion in arrest of judgment with respect to the 5 aggravated murder conviction, vacated that conviction, and entered an amended judgment 6 dismissing that charge. The state appeals, asserting that, in light of State v. Dasa, 234 Or 7 App 219, 227 P3d 228, rev den, 349 Or 173 (2010), the trial court erred in granting 8 defendant's motion in arrest of judgment and in dismissing the aggravated felony murder 9 charge.1 Defendant cross-appeals and raises seven assignments of error. We reject all of 10 defendant's assignments of error on cross-appeal without discussion. 11 With respect to the state's contention that the trial court erred in granting 12 the motion in arrest of judgment and in dismissing the aggravated felony murder charge, 13 defendant acknowledges that Dasa controls. However, he asserts that Dasa was 14 incorrectly decided and asks that it be overruled. We decline defendant's invitation and 15 adhere to our analysis in Dasa. Accordingly, the trial court erred in granting defendant's 16 motion in arrest of judgment and in entering an amended judgment dismissing the 17 aggravated felony murder charge. 18 On appeal, order arresting judgment on Count 1 reversed and remanded, 19 amended judgment vacated and remanded with instructions to reinstate conviction for 1 In view of our resolution of that issue, we need not address the state's sentencingrelated assignment of error. 1 1 aggravated murder, and for resentencing; on cross-appeal, affirmed. 2
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