State v. Connell

PER CURIAM

In a trial to the court, defendant was found guilty of the uncharged crime of assault in the third degree, ORS 163.165, as a lesser included offense of assault in the second degree, ORS 163.175, for which he was indicted. On appeal, defendant argues that his motion for judgment of acquittal of assault in the third degree should have been granted, because that crime is not a lesser included offense of assault in the second degree. The state concedes that the court erred, and we accept that concession.

Defendant requests that we remand the case for entry of a conviction for the lesser included offense of assault in the fourth degree, ORS 163.160. We agree that that is the correct disposition.

Conviction for assault in the third degree reversed; remanded for entry of conviction for assault in the fourth degree and for resentencing.