State v. Fox

Annotate this Case

779 P.2d 197 (1989)

98 Or.App. 356

STATE of Oregon, Respondent, v. Joseph Scott FOX, Appellant.

C87-11-36697; CA A48578.

Court of Appeals of Oregon.

Argued and Submitted June 28, 1989.

Decided September 6, 1989.

Reconsideration Denied November 17, 1989.

Peter Gartlan, Salem, argued the cause for appellant. With him on the briefs was Gary D. Babcock, Public Defender, Salem.

Michael C. Livingston, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before GRABER, P.J., and RIGGS and EDMONDS, JJ.


Defendant appeals his convictions for burglary in the first degree, ORS 164.225, attempted aggravated felony murder with a firearm, ORS 163.095, attempted murder with a firearm, ORS 163.115, and attempted assault in the first degree with a firearm. ORS 163.185. The state concedes that the attempted murder and attempted assault counts merge with the attempted aggravated felony murder count, and we remand for entry of a single judgment of conviction on the latter charge. State v. Cloutier, 286 Or. 579, 596 P.2d 1278 (1979); State v. Lavender, 68 Or. App. 514, 682 P.2d 823, rev. den., 297 Or. 547, 685 P.2d 998 (1984); see also ORS 161.062(1).

Defendant also urges merger of the burglary and attempted aggravated felony murder counts, but he did not present that issue to the trial court. The question is a close one; therefore, any error is not egregious, and we will not consider it for the first time on appeal. State v. McNamer, 80 Or. App. 418, 420, 722 P.2d 51 (1986).

Defendant assigns error to the trial court's exclusion of expert testimony regarding the reliability of eyewitness identifications, *198 but we find no abuse of discretion in the trial court's ruling that the proffered testimony would not be helpful to the jury. OEC 702; State v. Stringer, 292 Or. 388, 639 P.2d 1264 (1982).

Remanded for entry of judgment convicting defendant only for burglary in the first degree and attempted aggravated felony murder with a firearm; otherwise affirmed.