State v. Humphreys

FILED: May 31, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

MATTHEW E. HUMPHREYS,

Appellant.

03C-52038; A125840

Appeal from Circuit Court, Marion County.

Mary Mertens James, Judge.

Argued and submitted April 19, 2006.

Jossi Davidson argued the cause for appellant. With him on the brief was Gracey & Davidson.

Susan Howe, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before Armstrong, Presiding Judge, and Brewer, Chief Judge, and Rosenblum, Judge.

PER CURIAM

Convictions vacated and remanded for merger and resentencing; otherwise affirmed.

PER CURIAM

Defendant appeals his convictions of two counts of felony assault in the fourth degree. ORS 163.160. Those convictions arose from a single assaultive act by defendant against his wife that was committed in the presence of defendant's minor child and stepchild. Defendant raises four assignments of error. We reject the first three assignments without discussion.

In his fourth assignment, defendant assigns error to the trial court's denial of his motion to merge the two convictions. The state concedes that, under State v. Glaspey, 337 Or 558, 100 P3d 770 (2004), the trial court erred in denying defendant's motion to merge the convictions. We agree and therefore accept the state's concession.

Convictions vacated and remanded for merger and resentencing; otherwise affirmed.