FILED: May 8, 2002

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

LARRY LYDELL BELL, SR.,

Appellant.

990331898; A111069

Appeal from Circuit Court, Multnomah County.

Janice Wilson, Judge.

Argued and submitted March 28, 2002.

Rankin Johnson IV, Deputy Public Defender, filed the opening briefs for appellant. With him on the briefs was David E. Groom, Public Defender. Larry Lydell Bell, Sr. filed the supplemental brief pro se.

Ann Kelley, Assistant Attorney General, filed the brief for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Edmonds, Presiding Judge, and Kistler and Brewer, Judges.

PER CURIAM

Sentences vacated and remanded for resentencing; otherwise affirmed.

PER CURIAM

Defendant was indicted for three counts of arson in the first degree based on his intentionally igniting a fire in a motel room. Count one alleged that he damaged the motel, a dwelling; count two alleged that he damaged a dwelling and its contents, recklessly placing a dwelling, the motel, in danger; and count three alleged that he damaged a dwelling and contents, recklessly placing persons, the employees and occupants of the motel, in danger. All charges were based on ORS 164.325(1)(b). On count one, the jury found him not guilty of arson but guilty of reckless endangerment; it convicted him of counts two and three. The trial court merged counts one and two and sentenced him separately on count three. On appeal defendant argues that it should have merged all three counts. The state concedes that he is correct, and we agree. State v. Barrett, 331 Or 27, 10 P3d 901 (2000); State v. Beason, 170 Or App 414, 12 P3d 560 (2000), rev den 331 Or 692 (2001).

Defendant also raises issues under Apprendi v. New Jersey, 530 US 466, 120 S Ct 2348, 147 L Ed 2d 435 (2000). He did not present those issues to the trial court, and we decline to consider them. Finally, he asserts that the jury's verdicts were inconsistent. However, he did not object before the trial court dismissed the jury, and he has therefore waived those arguments for appeal. See ORCP 59 G(4); ORS 136.330; Building Structures, Inc. v. Young, 328 Or 100, 110, 968 P2d 1287 (1998).

Sentences vacated and remanded for resentencing; otherwise affirmed.


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