State v. Hernandez

823 P.2d 1042, 111 Or. App. 400, 1992 Ore. App. LEXIS 330

Opinion

PER CURIAM

Defendant was indicted on two counts of delivery of a controlled substance. ORS 475.992. The first count charged that he committed the crime as part of a drug cultivation, manufacture or delivery scheme or network, but the second count did not. The court overruled defendant’s demurrer and alternative motion to strike, which alleged that the scheme or network language was unconstitutionally vague. State v. Moeller, 105 Or App 434, 806 P2d 130, rev dismissed 312 Or 76, 815 P2d 701 (1991). In a trial to the court on stipulated facts, defendant was convicted only on count 2 of the indictment.

Defendant’s only assignment of error is based on our decision in Moeller. Because he was convicted only on count 2, which did not allege participation in a scheme or network, the assignment of error is moot.

Affirmed.