State v. Martin

Court of Appeals of Oregon

State v. Martin

818 P.2d 1301, 109 Or. App. 483, 1991 Ore. App. LEXIS 1612

CourtCourt of Appeals of Oregon

DecidedOctober 30, 1991

Docket89-10-35672; CA A66158

StatusPublished

This text of 818 P.2d 1301 (State v. Martin) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State v. Martin, 818 P.2d 1301, 109 Or. App. 483, 1991 Ore. App. LEXIS 1612 (Or. Ct. App. 1991).

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Opinion

PER CURIAM

Defendant appeals his conviction for racial intimidation in the first degree. ORS 166.165. We remand for modification of the judgment and sentence.

Defendant first argues that the court erred in overruling his demurrer, made on the ground that ORS 166.165 violates the free speech guarantee of the state constitution. We have upheld the statute in the face of a similar constitutional challenge. State v. Hendrix, 107 Or App 734, 813 P2d 1115 (1991). The demurrer was properly overruled.

In his second assignment, defendant contends that he should have been found guilty only of intimidation in the second degree. ORS 166.155. We agree. Racial intimidation in the first degree requires that two or more persons act together, but the offense in the second degree can be committed by only one person. Defendant and Ensminger were charged and jointly tried for intimidation in the first degree. Defendant requested an instruction on the lesser included offense of intimidation in the second degree. The trial court said that, in lieu of giving that instruction, if Ensminger were acquitted of the charge, the court would sentence defendant only on the second degree offense.

Ensminger was acquitted, but the court entered a conviction for intimidation in the first degree and sentenced defendant on that charge. The state concedes, and we agree, that defendant should be convicted and sentenced only for intimidation in the second degree.

Judgment vacated; remanded for entry of judgment of conviction for intimidation in the second degree and .for resentencing.

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PER CURIAM

Defendant appeals his conviction for racial intimidation in the first degree. ORS 166.165. We remand for modification of the judgment and sentence.

Defendant first argues that the court erred in overruling his demurrer, made on the ground that ORS 166.165 violates the free speech guarantee of the state constitution. We have upheld the statute in the face of a similar constitutional challenge. State v. Hendrix, 107 Or App 734, 813 P2d 1115 (1991). The demurrer was properly overruled.

In his second assignment, defendant contends that he should have been found guilty only of intimidation in the second degree. ORS 166.155. We agree. Racial intimidation in the first degree requires that two or more persons act together, but the offense in the second degree can be committed by only one person. Defendant and Ensminger were charged and jointly tried for intimidation in the first degree. Defendant requested an instruction on the lesser included offense of intimidation in the second degree. The trial court said that, in lieu of giving that instruction, if Ensminger were acquitted of the charge, the court would sentence defendant only on the second degree offense.

Ensminger was acquitted, but the court entered a conviction for intimidation in the first degree and sentenced defendant on that charge. The state concedes, and we agree, that defendant should be convicted and sentenced only for intimidation in the second degree.

Judgment vacated; remanded for entry of judgment of conviction for intimidation in the second degree and .for resentencing.

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818 P.2d 1301, 109 Or. App. 483, 1991 Ore. App. LEXIS 1612, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-martin-orctapp-1991.

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