Opinion
10C44332 A146792.
2013-02-13
STATE of Oregon, Plaintiff–Respondent, v. Dusty Keaton EPPS, Defendant–Appellant.
Appeal from Circuit Court, Marion County, 10C44332. John B. Wilson, Judge. Peter Gartlan, Chief Defender, and Kali Montague, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, filed the brief for respondent.
Appeal from Circuit Court, Marion County, 10C44332.
John B. Wilson, Judge.
Peter Gartlan, Chief Defender, and Kali Montague, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, filed the brief for respondent.
Before ORTEGA, Presiding Judge, and NAKAMOTO, Judge, and DE MUNIZ, Senior Judge.
PER CURIAM.
Defendant appeals a judgment of conviction for two counts of unauthorized use of a vehicle, ORS 164.135, and two counts of possession of a stolen vehicle, ORS 819.300. On appeal, he raises six assignments of error. We reject without discussion defendant's first four assignments of error, in which he contends that the trial court erred in denying his motion for judgment of acquittal on all of four of the charges. In his fifth and sixth assignments of error, defendant contends that the trial court committed plain error in failing to merge the guilty verdicts for possession of a stolen vehicle with the guilty verdicts for unauthorized use of a vehicle. See State v. Noe, 242 Or.App. 530, 256 P.3d 166 (2011) (guilty verdict for possession of a stolen vehicle merges with guilty verdict for unauthorized use of a vehicle); see alsoORAP 5.45; Ailes v. Portland Meadows, Inc., 312 Or. 376, 382, 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 and that, “although defendant's fifth and sixth assignments of error are unpreserved, this court can review them as plain error.” We agree, accept the state's concession, and, for the reasons stated in State v. Camacho–Alvarez, 225 Or.App. 215, 216, 200 P.3d 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 verdicts for possession of a stolen vehicle and unauthorized use of a vehicle into two convictions for unauthorized use of a vehicle and for resentencing; otherwise affirmed.