State v. Washington

FILED: August 13, 2008

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

GARY ALLEN WASHINGTON,

Defendant-Appellant.

Multnomah County Circuit Court
051036145; A131556

Henry Kantor, Judge.

Submitted on June 27, 2008.

Peter Gartlan, Chief Defender, Legal Services Division, and Anne F. Munsey, Senior Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Christina M. Hutchins, Senior Assistant Attorney General, filed the brief for respondent.

Before Sercombe, Presiding Judge, and Brewer, Chief Judge, and Riggs, Senior Judge.

PER CURIAM

Reversed and remanded for entry of judgment reflecting single conviction for felony fourth-degree assault; remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant appeals a judgment of conviction on one count of felony assault in the fourth degree and one count of misdemeanor assault in the fourth degree. In his first two assignments of error, defendant challenges the trial court's denial of his motions in limine concerning references to the term "domestic violence" and evidence to the effect that the officers who investigated the assault had training and experience in a "domestic violence unit." We reject those assignments of error without discussion.

In his third assignment, defendant contends that the trial court erred in failing to merge his convictions for felony and misdemeanor fourth-degree assault. Defendant acknowledges that he did not preserve that claim of error below but urges this court to review it as error apparent on the face of the record under ORAP 5.45(1). The state concedes that the trial court erred in failing to merge the convictions into a single conviction for felony assault in the fourth degree, see State v. Glaspey, 337 Or 558, 100 P3d 730 (2004), and agrees that the requirements for review as error apparent on the face of the record are satisfied in this case. We agree with the state and, for the reasons expressed in State v. Orobio-Juan, 220 Or App 446, 447-48, 186 P3d 326 (2008), exercise our discretion to correct the error.

Reversed and remanded for entry of judgment reflecting single conviction for felony fourth-degree assault; remanded for resentencing; otherwise affirmed.