STATE OF OREGON v. MARCUS JOSEPH HORN

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Court of Appeals of Oregon.

STATE OF OREGON, Plaintiff-Respondent, v. MARCUS JOSEPH HORN, Defendant-Appellant.

Klamath County Circuit Court 1500088CR

Decided: March 01, 2017

Before Sercombe, Presiding Judge, and Flynn, Judge, and DeHoog, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Vanessa McDonald, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Leigh A. Salmon, Assistant Attorney General, filed the brief for respondent.

PER CURIAM

Defendant appeals a judgment of conviction for two counts of witness tampering (Counts 1 and 2), ORS 162.285.1 On appeal, defendant raises two assignments of error. We reject without discussion defendant's second assignment of error, in which he contends that the trial court erred in denying his motion for judgment of acquittal on Count 2. However, we reach a different conclusion as to defendant's first assignment of error. In his first assignment, defendant contends that the trial court erred in denying his motion for judgment of acquittal on Count 1. Defendant asserts that the evidence is insufficient to support the conviction on that count. The state concedes that, as to Count 1, the evidence was legally insufficient and the trial court erred in denying defendant's motion for judgment of acquittal. The state's concession is well founded, and we accept it.

Conviction on Count 1 reversed; remanded for resentencing; otherwise affirmed.

FOOTNOTES

1.   Under ORS 162.285(1)(a), a person commits the crime of tampering with a witness if“[t]he person knowingly induces or attempts to induce a witness or a person the person believes may be called as a witness in any official proceeding to offer false testimony or unlawfully withhold any testimony[.]”

PER CURIAM