STATE v. DYE, 69 Or. App. 558 (1984)

686 P.2d 1042

STATE OF OREGON, Respondent, v. DAVID I. DYE, Appellant.

J81-3352; CA A30607Oregon Court of Appeals.Submitted on record and briefs July 20, 1984
Reversed and remanded August 29, 1984

Appeal from Circuit Court, Douglas County.

Robert Stults, Judge.

Alan R. Scott, Jr., Roseburg, filed the brief for appellant.

Dave Frohnmayer, Attorney General, James E. Mountain, Jr., Solicitor General, and Jeff Bennett, Assistant Attorney General, Salem, filed the brief for respondent.

Before Gillette, Presiding Judge, Joseph, Chief Judge, and Young, Judge.

PER CURIAM

Reversed and remanded for entry of a new judgment and resentencing.

Page 559

PER CURIAM

This is a criminal case in which defendant appeals his conviction for assault in the fourth degree, claiming that there was insufficient evidence to support a conviction. We agree. However, the evidence was sufficient to convict defendant of the lesser included offense of attempted assault in the fourth degree. See State v. Capwell, 52 Or. App. 43, 46-47, 627 P.2d 905 (1981); Or Const, Art VII (Amended), § 3.

Reversed and remanded for entry of a new judgment and for resentencing.

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