STATE v. BROWN

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Court of Appeals of Oregon.

STATE of Oregon, Plaintiff–Respondent, v. James Boyd BROWN, Defendant–Appellant.

CFH120078; A152403.

Decided: June 25, 2014

Before SERCOMBE, Presiding Judge, and HADLOCK, Judge, and MOONEY, Judge pro tempore. Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent.

Defendant appeals a judgment of conviction for unauthorized use of a vehicle, ORS 164.135, possession of a stolen vehicle, ORS 819.300, and first-degree criminal trespass, ORS 164.255. On appeal he raises three assignments of error. We reject without discussion defendant's first two assignments of error, in which he contends that the trial court erred in denying his motions for judgment of acquittal on the unauthorized use of a vehicle and possession of a stolen vehicle charges. In his third assignment of error, defendant contends that the trial court committed plain error in failing to merge the guilty verdict for possession of a stolen vehicle with the guilty verdict for unauthorized use of a vehicle. See State v. Noe, 242 Or.App. 530, 256 P3d 166 (2011) (guilty verdict for possession of a stolen vehicle merges with guilty verdict for unauthorized use of a vehicle); see also ORAP 5.45(1); Ailes v.. Portland Meadows, Inc., 312 Or 376, 381–82, 823 P.2d 956 (1991) (court has discretion to review unpreserved error of law apparent on the face of the record). The state concedes that the trial court so erred. We agree, accept the state's concession, and, for the reasons stated in State v. Camacho–Alvarez, 225 Or.App. 215, 216, 200 P3d 613 (2009), conclude that it is appropriate to exercise our discretion to correct the error in this case.

Reversed and remanded with instructions to merge the guilty verdict for possession of a stolen vehicle and unauthorized use of a vehicle into a single conviction for unauthorized use of a vehicle and for resentencing; otherwise affirmed.

PER CURIAM.

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