FILED: November 10, 1999

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

DANNY BLAKE STUART,

Appellant.

(96-587; CA A100410)

Appeal from Circuit Court, Baker County.

Milo Pope, Judge.

Argued and submitted September 30, 1999.

Eric M. Cumfer argued the cause and filed the briefs for appellant.

Jonathan H. Fussner, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Edmonds, Presiding Judge, and Armstrong, Judge, and Warren, Senior Judge.

PER CURIAM

Judgment of conviction vacated; remanded for entry of judgment of conviction for lesser included offense of third-degree assault.

PER CURIAM

Defendant appeals from a judgment convicting him of assault in the second degree. ORS 163.175(1)(c). All of defendant's assignment of errors, except one, were decided in a companion case. See State v. Cook, __ Or App __, __ P2d __ (decided October 27, 1999). Defendant's remaining assignment of error does not merit discussion.

Judgment of conviction vacated; remanded for entry of judgment of conviction for lesser included offense of third-degree assault.


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