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STATE of Oregon, Plaintiff-Respondent, v. Nathan Wade POGUE, Defendant-Appellant.

Court of Appeals of Oregon2018-02-22No. A161594
412 P.3d 277290 Or. App. 452

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Opinion

majority opinion

PER CURIAM

Defendant appeals a judgment of conviction for felon in possession of a firearm (Count 1), unlawful use of a weapon (Counts 2 and 3), and menacing (Counts 4 and 5). He assigns error to the trial courts entry of judgment designating Counts 2, 3, and 4 as crimes constituting domestic violence, ORS 132.586. The state concedes that the trial courts insertion of the phrase constituting domestic violence in Counts 2 through 4 was error because the state never alleged that Count 3 was a crime constituting domestic violence and because the state decided not to pursue proof of that element with regard to Counts 2 and 4. We agree, accept the states concession, and remand for entry of a corrected judgment that deletes all references to the constituting domestic violence element from the judgment of conviction. See State v. Neighbors , 283 Or. App. 488, 489, 388 P.3d 1250 (2017). We otherwise affirm defendants judgment of conviction.

Remanded for entry of a corrected judgment deleting all references to constituting domestic violence; otherwise affirmed.

ORS 132.568 provides, in part:

(2) When a crime involves domestic violence, the accusatory instrument may plead, and the prosecution may prove at trial, domestic violence as an element of the crime. When a crime is so pleaded, the words constituting domestic violence may be added to the title of the crime.

Defendant also assigns error to the trial courts jury instruction allowing nonunanimous guilty verdicts. We reject that assignment of error without published discussion.