504 August 26, 2026 No. 805
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
SARAH REBECCA SALO,
Defendant-Appellant.
Multnomah County Circuit Court
22CR42023; A183920
Melvin Oden-Orr, Judge.
Argued and submitted June 16, 2026.
David Sherbo-Huggins, Deputy Public Defender, argued
the cause for appellant. Also on the brief was Ernest G.
Lannet, Chief Defender, Criminal Appellate Section, Oregon
Public Defense Commission.
Jonathan N. Schildt, Assistant Attorney General, argued
the cause for respondent. Also on the brief were Dan Rayfield, Attorney General, and Paul L. Smith, Solicitor General.
Before Tookey, Presiding Judge, Kamins, Judge, and
Kistler, Senior Judge.
KISTLER, S. J.
Conviction on Count 3 reversed; remanded for entry of a
judgment of conviction on Count 6; remanded for resentencing; otherwise affirmed.
Cite as 352 Or App 504 (2026) 505
506 State v. Salo
KISTLER, S. J.
Defendant appeals a judgment of conviction for one
count of first-degree theft and two counts of identity theft.
Defendant raises primarily two issues on appeal. First,
she argues that the trial court erred in admitting business
records that were created and maintained by two separate
businesses when the state laid a foundation for admitting
only one business’s records. As explained below, we conclude
that, even if the records that the court admitted were created and maintained by two businesses, the state laid a sufficient foundation to admit both businesses’ records.
Second, defendant argues that the trial court erred
in finding her guilty of two counts of first-degree theft.1 The state concedes that the prosecutor’s pretrial election limited the court to finding defendant guilty of one count of firstdegree theft. We accept the concession. We also conclude that
defendant did not preserve her claim that the trial court
could not find her guilty of the other count of first-degree
theft. We accordingly affirm the trial court’s judgment in
part and reverse it in part.
We state the facts consistently with the trial court’s
verdict. K banks at Advantis Credit Union. On November
21, 2021, defendant used an interactive teller machine
(ITM) at an Advantis branch to speak remotely with a teller.
Defendant initially used the ITM to present K’s driver’s
license to the teller. After asking the teller for the balances in K’s accounts, defendant deposited two forged checks, drawn
on another financial institution, into K’s checking account
and then withdrew $7,150 from that account. Defendant told
the teller that she needed the money to make a down payment on a car.
Later that day, defendant used an ITM at the
same Advantis branch and spoke remotely with the same
teller. Defendant told her that she needed additional cash
because she had decided to buy a more expensive truck. She
then withdrew $2,800 from accounts that K maintained at
1
At sentencing, the trial court merged defendant’s two first-degree theft guilty verdicts and entered a judgment of conviction for one count of first-degree theft. Merging the two guilty verdicts did not moot defendant’s challenge to one or both of them.
Cite as 352 Or App 504 (2026) 507
Advantis. That day, K discovered that her driver’s license
was missing and that most of the money in her Advantis
accounts had been withdrawn.
The ITM that defendant used at Advantis scanned
the documents that defendant presented and maintained
images of them. The ITM also recorded and maintained videos of defendant’s two interactions with the remote teller.
The trial court admitted the images of those documents and
the two videos at trial. Based on that and other evidence,
the trial court found defendant guilty of two counts of firstdegree theft and three counts of identity theft. As noted, at
sentencing, the trial court merged the two first-degree theft
verdicts and also two of the three identity-theft verdicts.
Defendant raises five assignments of error on
appeal. Her first three assignments of error are directed at
two evidentiary rulings the trial court made. We review a
trial court’s evidentiary rulings for errors of law. Arrowood
Indemnity Company v. Fasching, 369 Or 214, 250, 503 P3d
1223 (2022). When a trial court’s evidentiary ruling is based
on its underlying factual findings, we will not disturb those
findings of fact if evidence in the record supports them. Id.
(quoting State v. Cunningham, 337 Or 528, 538, 99 P3d 271
(2004), cert den, 544 US 931 (2005)).
Before turning to defendant’s first two assignments
of error, we discuss the order in which the state presented its evidence and the resulting problems the state faced. When a
case depends on a financial institution’s business records, as this case does, the state often will begin by calling the custodian of those records or another qualified witness to lay the
foundation for admitting the records under OEC 803(6). Cf.
Arrowood Indemnity Company, 369 Or at 239-41 (discussing how a party can lay a foundation for admitting business
records under OEC 803(6)). In this case, however, an unexpected scheduling problem prevented the state from laying
a foundation for admitting Advantis’s business records until
it called its last witness.
As a result, defendant repeatedly raised successful hearsay objections that limited, at least initially, the
probative value of the evidence that the state introduced.
508 State v. Salo
For example, the state called K, who identified her driver’s
license, which was admitted as State’s Exhibit 2. She testified that she discovered on November 21 that her license
was missing. K also testified that she had neither endorsed
nor deposited any checks that day in her Advantis account.
The state called a second witness, whose checks were made
out to K. That person identified the checks as hers. She testified that two of her checks had been taken on November
21, that she did not know K, and that she had not written
the checks to her. The two checks were admitted as State’s
Exhibits 3 and 4.
Without Advantis’s business records, the state’s
evidence did not prove much. It did not establish that any
deposits or withdrawals occurred in K’s Advantis accounts
on November 21. And it did not connect defendant to any
withdrawals from K’s accounts that were made that day. On
the last day of trial, the state called Davis, who is a fraud
investigator at Advantis. The state called Davis for two reasons. The first was to lay a foundation for the admission
of Advantis’s business records, and the second was to use
Davis’s testimony to connect defendant and the exhibits that
already had been admitted to transactions that occurred in
K’s Advantis accounts on November 21.
With that preface, we turn to defendant’s first and
second assignments of error. Defendant’s first assignment of
error states, “The trial court erred by allowing Davis to testify that the documents contained in State’s Exhibits 2, 3,
and 4 [K’s driver’s license and the two checks] were used by
defendant in the transactions at issue.” Defendant’s second
assignment of error states, “The trial court erred by allowing Davis to testify that State’s Exhibit 1 [two ITM videos of banking transactions] contained video of the transactions at
issue.”
Although defendant’s first two assignments of error
are nominally directed at rulings permitting Davis’s testimony, the gravamen of those two assignments of error is
that the court erred in ruling that the state had laid a sufficient foundation to admit all the business records the state
offered. Specifically, defendant argues in support of those
assignments of error that the business records the trial
Cite as 352 Or App 504 (2026) 509
court admitted were created and maintained by two separate businesses (Advantis and the ITM manufacturer) but
that the state only laid a foundation for the admission of
the business records that Advantis created and maintained.
It follows, defendant contends, that the trial court erred in
permitting Davis’s testimony to the extent that her testimony was based on all the business records the trial court
admitted.2
The legal principle that underlies defendant’s argument comes from the Supreme Court’s decision in Arrowood
Indemnity Company. In that case, the court held that, if
two separate businesses create and maintain business
records, the fact that one business relies on and uses the
other business’s records is not sufficient to admit both businesses’ records under OEC 803(6). See id. at 231-37. Rather,
if a party wants to rely on business records from two separate businesses, it needs to call a witness or witnesses who
can lay a foundation under OEC 803(6) for both businesses’
records. See id. at 251-52.
In Arrowood Indemnity Company, there was no dispute that, as a factual matter, two separate businesses created and maintained the records that the trial court admitted.3 In this case, as we explain below, not only are the facts on that issue murky, but the record on that issue is thin.
The latter point matters because the state, as the proponent
of the business records, had the burden of production and
persuasion. See id. at 225-26.
2
The state interprets defendant’s first two assignments of error narrowly. It argues that defendant has assigned error only to the admission of Davis’s testimony but that she has not assigned error to the admission of State’s Exhibits 1, 2, 3, and 4. It follows, the state reasons, that the only issue raised by defendant’s first two assignments of error is whether Davis had personal knowledge of the events reflected in those exhibits. Given the way that defendant phrased her assignments of error, the state’s position is not unreasonable. However, viewing defendant’s assignments of error in the context of her arguments, we interpret those assignments of error as challenging the ruling admitting the proffered business records.
3
In Arrowood Indemnity Company, the plaintiff had insured a student loan issued by Citibank. See 369 Or at 217-19. When the borrower defaulted, the plaintiff indemnified the lender and brought an action against the borrower in which it relied, in part, on the lender’s business records. Id. Factually, there was no dispute that the insurer and the lender were separate businesses. The primary dispute was whether the insurer’s reliance on the lender’s business records was sufficient to admit those records under OEC 803(6).
510 State v. Salo
The record is thin in two respects. First, the facts
developed at an OEC 104 hearing reveal that Advantis
uses multiple systems to track banking transactions that
occur on its various platforms—i.e., banking transactions
that occur in person, at an ITM, online, or by means of a
debit card. Although Advantis maintains a central or “host”
system that records all those transactions, the ITMs that
Advantis uses appear to create and maintain a more detailed
set of records (primarily check images and videos) than the
records maintained on Advantis’s host system.4
Second, defendant developed evidence while crossexamining Davis at the OEC 104 hearing that the ITM
records are created and maintained by a business (the ITM
manufacturer) that is separate from Advantis. A passing
reference that Davis made on cross-examination cuts the
other way, and the trial court arguably could have inferred
from that reference that the business relationship between
Advantis and the ITM manufacturer meant that only a
single business (Advantis) created and maintained all the
business records the trial court admitted. However, as noted
above, the record on that issue is thin, and it is questionable whether the state carried its burden to introduce enough
evidence to permit the trial court to make that finding.5
We need not decide whether the state introduced
sufficient evidence to permit the trial court to find that only a single business (Advantis) created and maintained the
business records that the court admitted. Even if we assume
(1) that the ITM created and maintained business records
that were more extensive than those found on Advantis’s
host system and (2) that a separate business (the ITM manufacturer) created and maintained the ITM records, the
trial court reasonably could and did find that the state laid
a sufficient foundation to admit all the business records that the state offered. We turn to that issue.
4
Perhaps a trier of fact could find on this record that the business records created and maintained by Advantis’s host system duplicated in every respect the records created and maintained by an ITM, but that seems doubtful.
5
Our decision is limited to the record created in this case. We express no opinion on whether a trier of fact could find, based on a different record, that only one business (Advantis) created and maintained the business records generated by the ITMs.
Cite as 352 Or App 504 (2026) 511
At an OEC 104 hearing, Davis explained that, when
an Advantis customer uses an ITM, the ITM contemporaneously creates and maintains images of the documents used
in the transaction, such as the customer’s identification,
any checks deposited, and the like. The ITM also contemporaneously creates and maintains a video of the interaction between the customer and the remote teller. Davis did
not know precisely how the ITMs’ hardware and software
worked. For example, she could not describe the type of camera the ITM used, nor could she explain how the software
caused the ITM to scan the documents and take the videos.
However, she was familiar with the way that the ITM operated, and she testified that, in investigating fraud claims, she regularly used the records that the ITMs created and maintained, along with records from other systems at Advantis. It
follows that the trial court reasonably could find from Davis’s testimony that, to the extent a separate business (the ITM
manufacturer) created and maintained the records generated by ITMs at Advantis, that business regularly did so and
maintained the records in the regular course of its business.
Given Davis’s testimony, the trial court found that
the state had laid a sufficient foundation under OEC 803(6)
to admit all the business records that the state offered.
Specifically, in considering defendant’s objection that the
state failed to lay a foundation to admit two separate businesses’ records, the trial court asked defense counsel:
“THE COURT: So what do I make of the fact that
that is part of their normal business practice to capture
the information, whether it’s housed on their own personal
server or as part of a vendor? It’s how they maintain their
records. And [Davis] did testify that when she does an
investigation she saves these things to a separate drive as
part of her investigation. So given that, I tend to believe
that she is a custodian or person otherwise capable of testifying about these records
“[DEFENSE COUNSEL]: So—
“THE COURT: And she went through great pains to
talk about how these [records] are gathered.”
Defense counsel responded, “I’m not saying that it’s, oh, it’s stored on a separate server that they rent from Amazon
512 State v. Salo
or whatever. That’s not the argument. It’s the operation of
the entire database is outside [Advantis].” And counsel contended that Davis’s testimony did not establish the criteria
set out in OEC 803(6) to admit business records created and
maintained by the separate business, which he identified as
the ITM manufacturer. The court then asked:
“THE COURT: Has there—let me ask, because I’m looking
at the rule here. And so, to be succinct, I believe the requirements of the exception have been met. But there is a provision
that says unless the source of the information or the method
of circumstances of preparation indicates [a lack of] trustworthiness. I didn’t hear anything that raises that issue. Is
there something in that—the testimony of the witness that
the Defense wants to point to. Because otherwise I believe
that all the requirements of [OEC] 803.6 have been met.”
“[DEFENSE COUNSEL]: There is not, Your Honor.”
In considering whether the state laid a sufficient foundation under OEC 803(6), we note that the court explained in
Arrowood Indemnity Company that “satisfying the requirements of OEC 803(6) is not too onerous.” 369 Or at 239. It
observed that a party can lay a foundation for the admission of business records either by “call[ing] a witness from
the business that created the record” or by calling “another
witness who can testify about the practices of the business
that created the record.” Id. at 240. The court quoted, with
approval, the following statement from a treatise on federal
evidence: “ ‘What is important is that the witness be familiar with the pertinent record-making practices of the business,
and with the manner in which records of the particular sort
being offered are made and kept, and those points may be
shown by anyone with the appropriate knowledge.’ ” Id. at 241
(quoting Christopher B. Mueller & Laird C. Kirkpatrick, 4
Federal Evidence § 8:78 at 727-28 (4th ed 2013)).6
It follows that, even if the ITM manufacturer was
a separate business that created and maintained some of
6
Consistently with that quotation, the court cited a federal case with approval, which it described in the following parenthetical: “drug enforcement agent laid foundation for the records of a money-exchange business, where the agent had familiarity with the business’s record-making practices.” Arrowood Indemnity Company, 369 Or at 240 n 15 (describing United States v. Franco, 874 F2d 1136, 1140 (7th Cir 1989)).
Cite as 352 Or App 504 (2026) 513
the business records that the trial court admitted, there was
evidence from which the trial court reasonably could find
that Davis was familiar with those practices and that her
testimony satisfied the criteria in OEC 803(6) for admitting
the ITM manufacturer’s records.7 Specifically, the trial court reasonably could find that the ITM manufacturer recorded
images of the documents presented during a banking transaction and made videos of the interaction between a customer and a remote teller “at the time or near the time” those events occurred. See Arrowood Indemnity Company, 369 Or
at 223-24 (listing that criterion for the admission of business records). Moreover, the court could find that, because the
records were made automatically by the ITM, they were, at a
minimum, made “by or from a person with knowledge.”8 See
id. Finally, the trial court could find that the “records were kept in the course of a regularly conducted business activity” and that they were made because it “was the regular practice of that business activity to make” such records.
At trial, defendant objected that Davis was not
qualified to lay a foundation under OEC 803(6) because she
was not familiar with the type of camera that the ITM used
and because she did not know how the software used in the
ITM machines created and maintained the records. As the
trial court correctly recognized, OEC 803(6) requires that
the witness be familiar with how business records are created and maintained; it does not require that the witness
have an engineering degree or be able to explain how a particular type of software works, at least as long as the witness can testify that the software was functioning reliably.
7
OEC 803(6) provides for the admission of the following business records:
“A memorandum, report, record, or data compilation in any form of acts,
events, conditions, opinions, or diagnoses, made at or near the time by, or
from information transmitted by, a person with knowledge, if kept in the
course of a regularly conducted business activity, and if it was the regular
practice of that business activity to make the memorandum, report, record,
or data compilation, all as shown by the testimony of the custodian or other
qualified witness, unless the source of information or the method of [sic] circumstances of preparation indicate lack of trustworthiness.”
8
The state argued below that, because the records were made by a machine rather than a person, they did not constitute hearsay at all. Even if they did, defense counsel told the trial court that there was no basis for saying that the images and the videos the ITM created were not trustworthy, which is sufficient, in these circumstances, to satisfy the second criterion in OEC 803(6). 514 State v. Salo
On appeal, defendant takes a different approach.
She relies on the standards for admitting testimonial evidence under the federal Confrontation Clause to argue that
the state failed to lay a sufficient foundation under OEC
803(6). To the extent that defendant seeks to weave those
federal constitutional standards into the criteria set out in
OEC 803(6), her argument fails for at least two reasons.
First, the court explained in Arrowood Indemnity
Company that it could not rely on policy or other grounds to
relax the specific standards that the legislature set out in
OEC 803(6). See, e.g., 369 Or at 228, 232-33, 237. By the same token, we cannot incorporate federal Confrontation Clause
standards into OEC 803(6) to impose stricter standards
than the legislature has provided in OEC 803(6). Second,
the federal Confrontation Clause standards that defendant
invokes apply to testimonial evidence. They do not apply to
out-of-court statements that were not “made or elicited primarily for use in a criminal proceeding.” See State v. Rafeh,
361 Or 423, 435, 393 P3d 1155 (2017) (relying on Ohio v.
Clark, 576 US 237, 246-47, 135 S Ct 2180, 192 L Ed 2d 06
(2015), to delimit the set of out-of-court statements to which the federal Confrontation Clause applies). The business
records at issue here are not “testimonial evidence.” They
were not made for the primary purpose of creating evidence
for a criminal prosecution, see id., and we decline to transpose a federal constitutional standard that applies to the
admission of testimonial evidence onto the decision whether
to admit business records under OEC 803(6). The trial court
did not err in admitting all the business records that the
state offered, even if those records were created and maintained by two separate businesses.
Defendant’s third assignment of error states that
“[t]he trial court erred by allowing Davis to give her opinion that defendant came to the credit union that day and withdr[e]w money from the account of [K] while pretending to be
[K].” At trial, defendant objected that the state’s question
impermissibly asked Davis to testify about an “ultimate
issue.” As we understand defendant’s objection, she viewed
the state’s question as effectively asking Davis whether,
in her opinion, defendant was guilty of theft and identity
Cite as 352 Or App 504 (2026) 515
fraud. The trial court overruled that objection, and defendant assigns error to that ruling.
The state’s question occurred after a lengthy OEC
104 hearing that consumed 42 pages of transcript. Faced
with strict time constraints, the court explained, after the
parties went back on the record, that it was “inclined to allow leading questions that are based on the [OEC] 104 information to help facilitate [speedily recreating Davis’s] testimony.”9 It follows that, in overruling defendant’s objection, the court may have been taking into consideration the information developed at the OEC 104 hearing that supplied some of
the factual premises that underlay the state’s question.
In any event, even if the court erred, any error was
harmless. Before asking the question that gave rise to defendant’s third assignment of error, the state asked Davis on
the record whether, in reviewing the videos of the November
21 transactions, she could see “who was using [K’s] ID that
day.” Davis said that she could, and she identified defendant
as the person in the videos. Defendant did not object to that
question. Shortly after that, the state asked the question
that gives rise to defendant’s third assignment of error.
Later, after the trial court admitted the business
records that the state offered, the state asked Davis: “So
the three [previously admitted] exhibits that you’re looking [at] in front of you, the checks and the ID of [K], are
those the documents that [defendant] presented that day?”
Davis answered, “Yes.”10 The state then played the two videos admitted as State’s Exhibit 1. Those two videos show
defendant using the ITM to present identification, deposit
two checks, make multiple incriminating statements as she
talks with the remote teller, and then withdraw approximately $9,950 dollars from K’s accounts. Given the two videos and Davis’s other testimony, to which defendant either
did not object or that were correctly admitted, we conclude
9
The court initially had considered adopting the testimony from the OEC 104 hearing. Defendant, however, had objected, and the state offered to quickly replicate the substance of that hearing on the record.
10
Defendant objected to Davis’s answer on the same grounds addressed above—that Davis’s answer was based on inadmissible hearsay. For the reasons explained above in discussing defendant’s first two assignments of error, the trial court correctly overruled that objection.
516 State v. Salo
that any error in overruling the objection identified in defendant’s third assignment of error was harmless. See State v.
Davis, 336 Or 19, 32, 77 P3d 1111 (2003) (explaining when
an error will be harmless).
Defendant’s fourth assignment of error states
that “[t]he trial court erred by finding defendant guilty of
first-degree theft in Count 3 as a lesser-included offense of
first-degree aggravated theft based on the first withdrawal
($7,150).” Her fifth assignment of error states that “[t]he
trial court erred by finding defendant guilty of first-degree
theft in Count 6 based on the second withdrawal ($2,800).”
The state concedes on appeal that, given the prosecutor’s
pretrial election, the trial court erred in finding defendant
guilty of first-degree theft as a lesser-included offense of
Count 3. The state does not agree, however, that the trial
court erred in finding defendant guilty of first-degree theft
as alleged in Count 6.
This issue arises in an unusual posture. Count 3 of
the indictment alleged that defendant was guilty of aggravated first-degree theft for taking personal property of K
and a third person that was worth $10,000 or more. Count
6 alleged that defendant was guilty of first-degree theft
for taking personal property of K and the same third person worth $1,000 or more. In a pretrial election, the state
explained that Count 3 included defendant’s withdrawals
from Advantis as described in Davis’s report. The state also
explained that “Count 6 is a lesser included offense of Count
3 * * * for the same reasons.”
As a result of various evidentiary rulings at trial,
the state proved only that defendant withdrew $9,950 from
K’s accounts at Advantis. She withdrew $7,150 initially on
November 21. She returned later that day and withdrew an
additional $2,800 from K’s accounts. In closing argument,
the state proposed that the court treat the two withdrawals as separate criminal episodes and find defendant guilty
of first-degree theft as a lesser included offense of Count 3
based on the first withdrawal. It proposed, based on the second withdrawal, that the court find defendant guilty of firstdegree theft alleged in Count 6, as a second lesser-included
offense of Count 3.
Cite as 352 Or App 504 (2026) 517
Defendant objected to the state’s proposal. Defense
counsel explained in closing argument that “[m]y notes from
the election that the State made was that it was proceeding
on [Count] 6 as a lesser included offense of Count 3.” Defense counsel explained that he now understood the state to be asking “the Court to consider theft in the first degree as a lesser included—an uncharged lesser included to Count 3 here and
consider an additional count for Count 6.” As we understand
defense counsel’s objection, defendant argued that the state’s pretrial election meant that the court could not find defendant guilty of two lesser-included counts of first-degree theft, as the state had proposed in its closing argument. Defense
counsel, however, did not argue at trial that the state’s pretrial election precluded the trial court from finding defendant guilty of one count of first-degree theft under Count 6.11
After considering the parties’ closing arguments,
the trial court found defendant guilty of two counts of firstdegree theft—one as a lesser-included offense of Count 3
and one based on Count 6. On appeal, the state acknowledges that the terms of the pretrial election established that Counts 3 and 6 were based on the same conduct and that
Count 6 alleged the sole lesser-included offense of Count 3.
The state accordingly concedes that the trial court could not
find defendant guilty of a lesser-included offense of firstdegree theft under Count 3. It could do so only under Count
6. We accept the state’s concession.
We also agree with the state that the terms of the
pretrial election did not preclude the trial court from finding defendant guilty of first-degree theft under Count 6.
Rather, the pretrial election specifically contemplated that
the court could do so. On appeal, defendant raises a host
of constitutional reasons why, in her view, the trial court
could not have found her guilty of first-degree theft under
Count 6. The reasons why defendant believes that those
11
During the state’s rebuttal argument, defendant objected to the state’s argument on the ground that it misconstrued her position on finding two counts of first-degree theft under Count 3 and Count 6. As we understand the stated basis for defendant’s objection, she sought only to clarify her previously stated position that the pretrial election precluded the court from finding her guilty of two lesser-included counts of first-degree theft. The trial court responded briefly that it understood defendant’s position.
518 State v. Salo
constitutional limitations apply in this circumstance are not
completely clear, however.
We need not decide whether the constitutional arguments that defendant raises on appeal are well taken. It is
sufficient to hold that, to the extent that defendant argues
that the trial court could not find her guilty of first-degree theft under Count 6, she failed to preserve that issue. See
State v. Wyatt, 331 Or App 335, 345-47, 15 P3d 22 (2000)
(explaining that an appellate court can consider whether an
appellant preserved an issue even though the respondent
does not contest preservation).
As we read defendant’s objection at trial, she argued
that the state’s pretrial election barred the court from finding her guilty of first-degree theft under Count 3. She did
not argue that the pretrial election or some other legal doctrine also barred the court from finding her guilty of firstdegree theft under Count 6. Beyond that, defendant did not
raise the various constitutional objections at trial that she
now raises on appeal. We conclude that defendant did not
preserve her argument that the trial court could not find her
guilty of first-degree theft on Count 6.
We accordingly reverse defendant’s judgment of
conviction for first-degree theft as a lesser-included offense under Count 3 and remand for resentencing. Because the
trial court merged the verdict for first-degree theft under
Count 6 with the verdict for the lesser-included offense of
first-degree theft under Count 3, our holding reversing the
judgment of conviction for first-degree theft under Count 3
and affirming the verdict of first-degree theft under Count
6 necessitates entering a new disposition on both Counts
3 and 6. See State v. Cockrell, 170 Or App 29, 31, 10 P3d
960 (2000) (reversal of one count and affirmance of another
that had been merged with it “has the effect of ‘unmerging’
those” counts, allowing the trial court to enter judgment
and sentence on the merged count on remand).
Conviction on Count 3 reversed; remanded for entry
of a judgment of conviction on Count 6; remanded for resentencing; otherwise affirmed.