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State v. Pinard

Summarized by: 

Date Filed: 02-27-2013
Case #: A148042
Schuman, P.J. for the Court; Wollheim, J.; and Duncan, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A148042.pdf

Appellate Procedure: Where the defendant does not raise a merger argument at the trial court, he must establish plain error that is apparent on the record and it must be such that the "legal point is obvious, not reasonably in dispute."

Defendant appealed convictions for animal abuse. Defendant shot his neighbor's dog with an arrow; the neighbor had the dog euthanized. Defendant was found guilty of maliciously causing the death of the dog. In his appeal, Defendant raised four assignments of error, two of which argued that there was insufficient evidence as to whether Defendant caused the death of the dog. Because there was ample evidence that Defendant's arrow fatally wounded the dog, the Court of Appeals rejected both assignments without discussion. In his third assignment, Defendant argued that the trial court erred in not merging the two animal death counts as they both involved the same elements. The Court rejected Defendant's assignment as his challenge did not establish plain error. As for Defendant's fourth assignment, the State conceded that the trial court erred in failing to merge Defendant's two guilty verdicts of first-degree animal abuse because counts alleged different theories for the same act. Reversed and remanded for resentencing; otherwise affirmed.