FILED: September 27, 2006

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

JOHN SCHWEITER,

Appellant.

03FE1370MS; A126756

Appeal from Circuit Court, Deschutes County.

Michael C. Sullivan, Judge.

Submitted on record and brief August 18, 2006.

Peter A. Ozanne, Executive Director, Peter Gartlan, Chief Defender, Legal Services Division, and Rebecca Duncan, Chief Deputy Public Defender, Office of Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Jonathan H. Fussner, Attorney-In-Charge, Criminal Appeals Unit, filed the brief for respondent.

Before Schuman, Presiding Judge, and Ortega and Rosenblum, Judges.

PER CURIAM

Reversed and remanded with instructions to enter a judgment reflecting four separate findings of guilt merging into one conviction, and for resentencing; otherwise affirmed.

PER CURIAM

Defendant was convicted of attempted assault in the fourth degree, ORS 163.160(3)(c), based on a single assault committed in the presence of four child witnesses. The trial court entered four convictions. Defendant contends that, under State v. Glaspey , 337 Or 558, 100 P3d 730 (2004), only one conviction was justified because the child witnesses are not "victims." The state concedes that Glaspey controls the outcome of this case and that the trial court erred by not merging the separate convictions into a single one. We agree and accept the concession.

Reversed and remanded with instructions to enter a judgment reflecting four separate findings of guilt merging into one conviction, and for resentencing; otherwise affirmed.


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