FILED: August 20, 2003

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Appellant,

v.

JOHN DUANE HESS,

Respondent.

200115408; A117315

Appeal from Circuit Court, Lane County.

Lyle C. Velure, Judge.

Argued and submitted January 29, 2003.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Daniel Q. O'Dell argued the cause and filed the brief for respondent.

Before Edmonds, Presiding Judge, and Armstrong* and Schuman, Judges.

PER CURIAM

Reversed and remanded.

Schuman, J., dissenting.

*Armstrong, J., vice Kistler, J.

PER CURIAM

Defendant was charged by indictment with three counts of public indecency, ORS 163.465. Each count alleged all of the elements of public indecency, ordinarily a misdemeanor. Each count also alleged an additional element that enhanced public indecency to a felony. That element was defendant's prior convictions for public indecency. ORS 163.465(2)(b). (1) Defendant offered to stipulate to his prior convictions with the understanding that the trial court would exclude all evidence of them. The state filed a motion in limine requesting that defendant's proposed stipulation be read into the record in the presence of the jury. The trial court entered an order denying the state's request and accepting defendant's stipulation. It also ruled that all evidence of the prior convictions would be excluded. The state appeals the trial court's denial of its motion in limine. ORS 138.060(1)(c). We reverse.

This case presents the same issue presented in State v. Hambrick, 189 Or App ___, ___ P3d ___ (August 20, 2003), where, relying on State v. Garrett, 187 Or App 201, 204-05, ___ P3d ___ (2003), we held that the trial court erred in accepting the defendant's stipulation to the "prior conviction" element of a crime and in then excluding all evidence of that prior conviction. For the reasons set out in Hambrick and Garrett, we reverse and remand.

Reversed and remanded.

SCHUMAN, J., dissenting.

This case presents the same issue as State v. Hambrick, ___ Or App ___, ___ P3d ___ (August 20, 2003), and I dissent for the reasons set out in my dissent to that case.


1. ORS 163.465 provides, in part:

"(2)(a) Public indecency is a Class A misdemeanor.

"(b) Notwithstanding paragraph (a) of this subsection, public indecency is a Class C felony if the person has a prior conviction for public indecency * * *."

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