State v. Hinkhouse

915 P.2d 489 (1996) 140 Or. App. 574

STATE of Oregon, Respondent,
v.
Timothy Alan HINKHOUSE, Appellant.

C9309-36386; CA A84175.

Court of Appeals of Oregon.

Petition for Reconsideration March 20, 1996. Decided May 1, 1996.

Sally L. Avera, Public Defender, and Peter Gartlan, Deputy Public Defender, for petition.

Before RIGGS, P.J., and LANDAU and LEESON, JJ.

On Appellant's petition for Reconsideration March 20, 1996.

LANDAU, Judge.

Defendant petitions for reconsideration of our opinion, State v. Hinkhouse, 139 Or.App. 446, 912 P.2d 921 (1996), in which we affirmed his convictions on multiple counts of attempted murder and attempted first degree assault. Defendant had challenged the trial court's denial of a motion for judgment of acquittal, arguing that the evidence failed to show that he intended to kill or to cause serious bodily injury. The state argued that the evidence, which showed that defendant knowingly engaged in repeated unprotected sexual intercourse with a number of victims while HIV positive, was sufficient to support the trial court's ruling. We agreed with the state and affirmed.

Defendant now argues that, in the course of our opinion, we referred to a hearsay statement from a presentence investigation report relied upon by one of the state's experts to the effect that defendant intended to spread his disease to others, and that such evidence may not be considered in evaluating the trial court's ruling. We assume, for the sake of argument, that the hearsay statement may not be considered as substantive evidence of defendant's intent to commit murder and first degree assault. We nevertheless conclude that the evidence set out in detail in the balance of our previous opinion is sufficient to enable a jury to conclude, beyond a reasonable doubt, that defendant intended to cause serious bodily injury and death.

Petition for reconsideration allowed; opinion modified and adhered to as modified.