FILED: March 23, 2011

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent
Cross-Appellant,

v.

BRYAN LEVI BANKSTON,

Defendant-Appellant
Cross-Respondent.

Benton County Circuit Court
CM0820289
A140423

Janet Schoenhard Holcomb, Judge.

On respondent-cross-appellant's petition for reconsideration filed February 3, 2011. Opinion filed December 1, 2010. 239 Or App 301, 243 P3d 1217.

John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Michael A. Casper, Assistant Attorney General, for petition.

Before Brewer, Chief Judge, and Edmonds, Senior Judge.

PER CURIAM

Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified. Affirmed on appeal. On cross-appeal, remanded for entry of judgment reflecting convictions for one count of first-degree unlawful sexual penetration and one count of first-degree sexual abuse; remanded for resentencing; otherwise affirmed.

PER CURIAM

The state petitions for reconsideration of our opinion in State v. Bankston, 239 Or App 301, 243 P3d 1217 (2010). In that opinion, we affirmed defendant's convictions and, on the state's cross-appeal, accepted defendant's concession that the trial court erred in merging two of his convictions. Accordingly, we remanded the case for entry of a judgment reflecting separate convictions. Id. at 303. As the state correctly notes in its petition for reconsideration, our opinion erroneously identified the convictions at issue in the state's cross-appeal. Our opinion mistakenly identified those convictions as defendant's convictions for first-degree unlawful sexual penetration, ORS 163.411, and third-degree sexual abuse, ORS 163.415. Id. at 302. In fact, the convictions at issue were defendant's convictions for first-degree unlawful sexual penetration, ORS 163.411, and first-degree sexual abuse, ORS 163.427.

For that reason, we modify our and opinion and disposition in four respects:

First, we delete the references to "third-degree sexual abuse" in the first two sentences of our prior opinion, id. at 302, and in the first sentence of the second paragraph of that opinion, id., and replace them with "first-degree sexual abuse."

Second, we delete the reference to "ORS 163.415" in the first sentence of our prior opinion, id., and replace it with "ORS 163.427."

Third, we delete the text of footnote two, id. at 302 n 2, and replace it with the following:

"ORS 163.427 provides:

(1) A person commits the crime of sexual abuse in the first degree when that person:

"(a) Subjects another person to sexual contact and:

"(A) The victim is less than 14 years of age;

"(B) The victim is subjected to forcible compulsion by the actor; or

"(C) The victim is incapable of consent by reason of being mentally defective, mentally incapacitated or physically helpless; or

"(b) Intentionally causes a person under 18 years of age to touch or contact the mouth, anus or sex organs of an animal for the purpose of arousing or gratifying the sexual desire of a person.

"(2) Sexual abuse in the first degree is a Class B felony. "

Fourth, we withdraw the disposition in our prior opinion, id. at 303, and replace it with the following: "Affirmed on appeal. On cross appeal, remanded for entry of judgment reflecting convictions for one count of first-degree unlawful sexual penetration and one count of first-degree sexual abuse; remanded for resentencing; otherwise affirmed."

Reconsideration allowed; former disposition withdrawn; former opinion modified and adhered to as modified. Affirmed on appeal. On cross-appeal, remanded for entry of judgment reflecting convictions for one count of first-degree unlawful sexual penetration and one count of first-degree sexual abuse; remanded for resentencing; otherwise affirmed.


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