State v. Wenzell, 432 P.3d 393, 295 Or. App. 574 (2019)

Jan. 3, 2019 · Court of Appeals of Oregon · A166174
432 P.3d 393, 295 Or. App. 574

STATE of Oregon, Plaintiff-Respondent,
v.
James Martin WENZELL, Defendant-Appellant.

A166174

Court of Appeals of Oregon.

Submitted November 2, 2018.
January 3, 2019

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Neil F. Byl, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Keith L. Kutler, Assistant Attorney General, filed the brief for respondent.

Before Hadlock, Presiding Judge, and DeHoog, Judge, and Aoyagi, Judge.

PER CURIAM

*394*575Defendant, who was convicted of possession of methamphetamine (Count 1), ORS 475.894, and supplying contraband (Count 2), ORS 162.185,1 appeals. On appeal, defendant challenges his conviction for supplying contraband, asserting that the trial court plainly erred in failing to enter a judgment of acquittal on that charge because there was no evidence in the record that defendant performed a voluntary act directed toward introducing contraband into a correctional facility.2 See State v. Ortiz-Valdez , 190 Or. App. 511, 514-15, 79 P.3d 371 (2003) (to be convicted of supplying contraband, a defendant must perform a voluntary act directed toward introducing contraband to a correctional facility). The state concedes that the trial court plainly erred when it failed to enter a judgment of acquittal on the supplying contraband charge, and that the conviction on that count should be reversed. We agree, accept the state's concession, and, for the reasons set forth in State v. Lusk , 267 Or. App. 208, 213-16, 340 P.3d 670 (2014), exercise our discretion to correct the error.

Conviction on Count 2 reversed; remanded for resentencing; otherwise affirmed.