- Court: Oregon Court of Appeals
- Area(s) of Law: Appellate Procedure
- Date Filed: 04-08-2015
- Case #: A146967
- Judge(s)/Court Below: Armstrong, P.J. for the Court; Nakamoto, J.; & Edmonds, S.J.
- Full Text Opinion
Defendant was convicted after a jury trial of one count of attempted aggravated murder, and eight counts of first-degree arson. Defendant assigned error to the trial court's refusal to consent to defendant's waiver of jury trial. In four assignments of error defendant argued that the court plainly erred in failing to merge the guilty verdicts on eight counts of arson. Lastly, defendant assigned error regarding nonunanimous jury verdicts (the Court rejected this without discussion). The facts are as follows: Defendant and four others set a duplex on fire. At the time the fire was set there were eight individuals in the duplexes. At trial defendant sought to waive his right to a jury trial, the state did not object, and the court did not make a finding on the record but state that the court would make a decision. The court never provided a finding or explanation and defendant did not raise the issue again. Here the Court found that because the defendant did not raise the issue of waiver again defendant did not allow the trial judge to make a record as to his decision for denying the waiver. As to the error in merging the eight counts the state conceded that the failure to merge was plain error and thus the Court found that it was appropriate to reverse and remand for resentencing on this error. Defendant also argued that counts of murder and attempted murder should have been merged. The Court found that when the same conduct or criminal episode, though violating only one statutory provision involves two or more victims, there are as many separately punishable offenses as there are victims. Because the record named the a different person for each count it is not plain error that the counts were not merged. Reversed and remanded for resentencing.