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STATE v. DELL (2003)

Court of Appeals of Oregon.

STATE of Oregon, Respondent, v. Robert Earl O'DELL, Appellant.

0007-35611;  A117948.

Decided: December 24, 2003

Before HASELTON, Presiding Judge, and LINDER and ORTEGA, Judges.

James N. Varner, Newberg, filed the brief for appellant. Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.

Defendant appeals his convictions and sentences for numerous crimes.   We affirm without discussion his first three assignments of error.   In his fourth assignment of error, defendant asserts that the trial court erred in failing to merge his conviction for conspiracy to commit first-degree assault with his conviction for first-degree assault.   The state concedes that those convictions should merge.   We agree.

ORS 161.485(3) provides that a person “shall not be convicted on the basis of the same course of conduct of both the actual commission of an offense and * * * conspiracy to commit that offense.” The convictions at issue concerned the same course of conduct.   Thus, defendant is correct that he could not be convicted of both the inchoate crime and the completed crime.   See State v. Watson, 180 Or.App. 320, 43 P.3d 444, rev. den., 334 Or. 289 (2002).

Reversed and remanded with instructions to merge convictions for conspiracy to commit first-degree assault and first-degree assault and for resentencing;  otherwise affirmed.

PER CURIAM.

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STATE v. DELL (2003)

Docket No: 0007-35611;  A117948.

Decided: December 24, 2003

Court: Court of Appeals of Oregon.

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