State v. Usher

SCHWAB, C. J.

Defendant was convicted of attempted sodomy in the first degree, ORS 161.405(1),¹ ORS 163.405,² and was placed on probation. One of the conditions of the probation order was that defendant pay $3,000 as "restitution” to the victim. This represents a sum greater than any expenses involved.

On appeal defendant makes two assignments of error. The first — that there was no evidence of attempted "forcible compulsion” — is contrary to the record. The second — that the court exceeded its authority in directing the defendant to pay $3,000 to the victim — is correct. State v. Stalheim, 275 Or 683, 552 P2d 829 (1976).

Remanded for resentencing.

1 "(1) A person is guilty of an attempt to commit a crime when he intentionally engages in conduct which constitutes a substantial step toward commission of the crime.” ORS 161.405.

2 "(1) A person who engages in deviate sexual intercourse with another person or causes another to engage in deviate sexual intercourse commits the crime of sodomy in the first degree if:

"(a) The victim is subjected to forcible compulsion by the actor

"* * * * *.” ORS 163.405.