State v. Wehage

13 P.3d 165, 170 Or. App. 535, 2000 Ore. App. LEXIS 1732

Opinion

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.