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FILED: DECEMBER 29, 2000

STATE OF OREGON,

Respondent,

v.

ERNEST NOLAND LOTCHES,

Appellant.

On automatic and direct review of the judgments of conviction and the sentence of death imposed by the Multnomah County Circuit Court.

William Snouffer, Judge.

Argued and submitted March 6, 2000.

Jeff Price, Los Angeles, argued the cause and filed the brief for appellant.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent. With him on the brief were Hardy Myers, Attorney General, Michael D. Reynolds, Solicitor General, Douglas F. Zier, Assistant Attorney General, and Lainie Block, Assistant Attorney General.

Before Carson, Chief Justice, and Gillette, Van Hoomissen, Durham, Leeson, and Riggs, Justices.*

GILLETTE, J.

The judgments of conviction for aggravated murder on counts 1 and 2 are reversed. The judgment of conviction for aggravated murder on count 3 and the sentence of death are affirmed. The case is remanded to the circuit court for further proceedings with respect to counts 1 and 2.

*Kulongoski, J., did not participate in the consideration or decision of this case.

GILLETTE, J.

This criminal case is before us on automatic and direct review from convictions for aggravated murder and a sentence of death. Former ORS 163.150(1)(g) (1997), repealed by Or Laws 1999, ch 1055,