Opinion
89-CR-127-MS; CA A61843
Argued and submitted April 24, 1991 Affirmed May 22, 1991 Reconsideration denied August 7, 1991
Petition for review denied September 24, 1991
Appeal from Circuit Court, Deschutes County.
Michael C. Sullivan, Judge.
Sally L. Avera, Public Defender, Salem, argued the cause and filed the brief for appellant.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Richardson, Presiding Judge, and Newman and Deits, Judges.
PER CURIAM
Convictions for conspiracy to deliver a controlled substance and possession of a controlled substance vacated; otherwise affirmed.
Defendant appeals his convictions on two counts of conspiracy to deliver a controlled substance, ORS 161.450, one count of delivery of a controlled substance, ORS 475.992(1)(a), and one count of possession of a controlled substance. ORS 475.992(4)(a).
Defendant first contends that the court erred by denying his motion for directed verdict on the ground that the defense of entrapment was not disproved by the state. There was evidence from which the jury could find that defendant was not entrapped.
Defendant next argues that the court erred by entering separate convictions for the offenses. The judgment recites that, for the purpose of sentencing, the possession and conspiracy charges are "merged" into the delivery charge. The state concedes that the court should have vacated the convictions for possession and for conspiracy, because all of the charges involved the same package of controlled substance. State v. McNamer, 80 Or. App. 418, 722 P.2d 51 (1986). We agree.
Convictions for conspiracy to deliver a controlled substance and possession of a controlled substance vacated; otherwise affirmed.