FILED: March 5, 2008

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

STEVEN KEITH DONOGHUE,

Defendant-Appellant.

Deschutes County Circuit Court
05FE0663ST; A130799

Stephen P. Forte, Judge.

Submitted on record and briefs February 1, 2008.

Rankin Johnson IV filed the opening brief for appellant. Steven Keith Donoghue filed the supplemental brief pro se.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Karla H. Alderman, Assistant Attorney General, filed the brief for respondent.

Before Edmonds, Presiding Judge, and Brewer, Chief Judge, and Sercombe, Judge.

PER CURIAM

Remanded for merger and resentencing; otherwise affirmed.

PER CURIAM

Defendant was convicted of first-degree manslaughter, ORS 163.118 (Count 2); second-degree manslaughter, ORS 163.125 (Count 3); second-degree assault, ORS 163.175 (Count 5); and two counts of fourth-degree assault, ORS 163.160 (Counts 1 and 6). Count 1 of the indictment involved defendant's actions toward one victim, while the remaining counts concerned defendant's actions toward a different victim. On appeal, defendant argues that the trial court erred in failing to merge his convictions for second-degree manslaughter (Count 3) and fourth-degree assault (Count 6) with his conviction for first-degree manslaughter (Count 2), all of which concerned the same victim and the same incident. The state concedes that the trial court erred in that regard, and we agree and accept the concession. On remand, the trial court should enter a judgment merging the convictions for Counts 3 and 6 with Count 2.

In a supplemental brief, defendant attempts to raise additional issues, including inadequate assistance of counsel and prosecutorial misconduct. Defendant's supplemental brief does not set forth separate assignments of error or otherwise comply with the format and preservation requirements of ORAP 5.45. Accordingly, we refuse to address the issues raised in the supplemental brief.

Remanded for merger and resentencing; otherwise affirmed.


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