FILED: October 18, 2000

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Respondent,

v.

JOSEPH WILLIAM WEHAGE,

Appellant.

(98-1128; CA A107566)

Appeal from Circuit Court, Columbia County.

Steven B. Reed, Judge.

Submitted on record and briefs September 1, 2000.

Louis R. Miles, Deputy Public Defender, filed the brief for appellant. With him on the brief was David E. Groom, State Public Defender.

Janet A. Klapstein, Assistant Attorney General, filed the brief for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before Edmonds, Presiding Judge, and Armstrong and Kistler, Judges.

PER CURIAM

Conviction of harassment on count 5 of the indictment reversed; otherwise affirmed.

PER CURIAM

Defendant was charged with four counts of Encouraging Sexual Abuse in the Second Degree, ORS 163.686, and one count of Attempted Sodomy in the Second Degree. ORS 163.395. After a trial to the court, he was convicted of two counts of Encouraging Sexual Abuse and one count of Harassment, ORS 166.065, as a lesser included offense of attempted sodomy. He appeals only the harassment conviction, arguing that that crime is not a lesser included offense of attempted sodomy. The state concedes that harassment is not a lesser included offense of attempted sodomy, at least under the indictment involved in this case, and therefore confesses error. We agree and therefore reverse the harassment conviction.

Conviction of harassment on count 5 of the indictment reversed; otherwise affirmed.


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