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No. 39

February 6, 2013 IN THE COURT OF APPEALS OF THE STATE OF OREGON STATE OF OREGON, Plaintiff-Respondent, v. JASON LEE AITKEN, aka Jason Lee Atiken, Defendant-Appellant. Umatilla County Circuit Court CFH090001; A143744

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Daniel J. Hill, Judge. Argued and submitted December 21, 2011. Marc D. Brown, Deputy Public Defender, argued the cause for appellant. With him on the briefs was Peter Gartlan, Chief Defender, Office of Public Defense Services. Greg Rios, Assistant Attorney General, argued the cause for respondent. With him on the brief were John R. Kroger, Attorney General, and Mary H. Williams, Solicitor General. Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge. WOLLHEIM, J. Remanded for resentencing; otherwise affirmed.
Defendant appeals from convictions of multiple counts of assault and one count of coercion and argues that the trial court erred in failing to merge one second-degree assault guilty verdict into a first-degree assault guilty verdict. He also contends that the trial court exceeded the lawful length of sentence. Held: The trial court did not err in failing to merge one guilty verdict of second-degree assault into a single conviction with a guilty verdict of first-degree assault, because there is evidence in support of the trial court's findings that, between the two offenses, defendant had a substantial opportunity to stop and renounce criminal intent. The court committed plain error in exceeding the statutory minimum sentence on Counts 3, 5, and 7, and the court exercises its discretion to correct the errors. Remanded for resentencing; otherwise affirmed.

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State v. Aitken

Defendant, who was convicted after a jury trial of one count of first-degree assault, two counts of seconddegree assault, one count of coercion, and one count of interfering with making a report, argues that the trial court erred in failing to merge one of the second-degree assault guilty verdicts into the first-degree assault guilty verdict; and he also takes issue with the length of the guidelines sentences imposed. We affirm the convictions but remand for resentencing. Because defendant was convicted, we state the evidence and all reasonable inferences in the light most favorable to the state. State v. Cervantes, 319 Or 121, 873 P2d 316 (1994): Early on the morning of January 1, 2009, Torres dropped off her daughter, Taylor, and defendant at the apartment of defendant's sister, Davis, where defendant was staying. Several hours later, Torres returned to pick up Taylor. As she was coming into the apartment, Torres saw defendant attempt to strike Taylor and she ran to stop him. Defendant turned and stabbed Torres in the neck and stomach. Torres thought that she had been punched, but she later realized that she had been stabbed and was bleeding. Defendant then threatened Davis, who called her fianc

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