FILED: May 28, 2008

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

DALE WARD FAIRBANKS,

Defendant-Appellant.

Multnomah County Circuit Court
0601-40664; 0602-41528
A133841(Control); A133842

Henry Kantor, Judge.

Submitted on April 04, 2008.

Peter Gartlan, Chief Defender, Legal Services Division, and Sarah E. Carpenter, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Michael R. Washington, Senior Assistant Attorney General, filed the brief for respondent.

Before Landau, Presiding Judge, and Schuman, Judge, and Ortega, Judge.

PER CURIAM

Judgment of conviction on Count 3 in Case Number A133841 reversed; otherwise affirmed.

PER CURIAM

Defendant was charged in two cases with a total of six counts of second-degree criminal trespass. ORS 164.245. One of those charges--Count 3 in Case Number A133841--was based on an incident in which police found him sleeping in Colonel Summers Park in Portland, in violation of what the police believed to be an order excluding defendant from the park. At trial, defendant moved for a judgment of acquittal on the ground that the state had failed to prove that he was excluded from the park at the time of the incident. The trial court denied the motion, and defendant was found guilty on all six counts. In this consolidated appeal, defendant argues that the trial court erred when it denied his motion for a judgment of acquittal on Count 3, because the state failed to prove that he was excluded from the park at the time of the incident. The state concedes that the record is insufficient to support the conviction on that count. We agree that the evidence was insufficient and that the trial court erred in denying defendant's motion for a judgment of acquittal on Count 3.

Judgment of conviction on Count 3 in Case Number A133841 reversed; otherwise affirmed.


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