FILED: November 05, 2008

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

MONTE MARVIN ZUEGER,
aka Monte Zueger,

Defendant-Appellant.

Multnomah County Circuit Court
060633603
A133871

John A. Wittmayer, Judge.

Submitted on October 06, 2008.

Daniel J. Casey filed the brief for appellant.  Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Anna M. Joyce, Assistant Attorney General, filed the brief for respondent.

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

PER CURIAM

Reversed and remanded.

PER CURIAM

Defendant appeals a judgment of conviction for possession of methamphetamine, ORS 475.894, and asserts two assignments of error.  First, defendant contends that the trial court erred in refusing to suppress evidence of methamphetamine seized from him.  Second, defendant makes an unpreserved contention that the trial court erred in admitting a crime laboratory report, because he had a right to confront the technician who prepared the report.  See State v. Birchfield, 342 Or 624, 157 P3d 216 (2007).

The state concedes that defendant's first assignment of error is controlled by State v. Kirkeby, 220 Or App 177, 184, 185 P3d 510, rev allowed, 345 Or 301 (2008), and State v. Rodgers, 219 Or App 366, 371, 182 P3d 209, rev allowed, 345 Or 301 (2008).  Although the state submits that those two cases were wrongly decided, it concedes that, under the holdings of those cases, the evidence of methamphetamine should have been suppressed and the judgment must be reversed.  We agree and accept the state's concession.  Accordingly, we do not reach defendant's second assignment of error.

Reversed and remanded.


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