State v. Murray , 308 Or. 496 ( 1989 )

782 P.2d 157 (1989) 308 Or. 496

STATE of Oregon, Respondent On Review,
v.
Mark Alan MURRAY, Petitioner On Review.

No. TC 10-87-08999; CA A47865; SC S36382.

Supreme Court of Oregon.

On Petition for Review August 8, 1989.^[*] Decided November 16, 1989.

Sally L. Avera, Acting Public Defender, and David E. Groom, Salem, for petitioner on review.

Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem, for respondent on review.

MEMORANDUM OPINION

Defendant petitions for review of a Court of Appeals decision affirming his convictions of murder and solicitation to murder. ORS 163.115; ORS 161.435. State v. Murray, 97 Or. App. 432, 775 P.2d 930 (1989). Count 1 of the indictment charged alternative theories of murder, viz, intentional murder and felony murder. As concerns defendant's murder conviction, this issue appears to be the same as that in State v. Boots, 308 Or. 371, 780 P.2d 725 (1989), i.e., whether the trial court correctly instructed the jury about the necessity for a unanimous verdict on a single murder theory.

The record here indicates that the trial court erred in instructing the jury. Accordingly, we reverse defendant's murder conviction and remand to the trial court for further consideration in the light of State v. Boots, supra.

As concerns defendant's criminal solicitation conviction, finding no error assigned or claimed as to that conviction, we affirm the judgment of the circuit court.

The petition for review is allowed. The circuit court's judgment of conviction of criminal solicitation is affirmed. The circuit court's judgment of conviction of murder is reversed. Remanded to the circuit court for further proceedings in the light of State v. Boots, 308 Or. 371, 780 P.2d 725 (1989).

NOTES

[*] Appeal from judgment of Lane County Circuit Court, George J. Woodrich, Judge. 97 Or. App. 432, 775 P.2d 930 (1989).