STATE v. MARTZ, 103 Or. App. 105 (1990)

795 P.2d 616

10-88-04062; CA A61146Oregon Court of Appeals.Argued and submitted May 30, 1990
Reversed August 8, 1990

Appeal from Circuit Court, Lane County.

George J. Woodrich, Judge.

Henry M. Silberblatt, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.

Michael Livingston, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.

Before Joseph, Chief Judge, and Warren and Rossman, Judges.

PER CURIAM

Reversed.

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PER CURIAM

Defendant appeals her conviction for frequenting a place where controlled substances are used. ORS 167.222. She argues that the trial court lacked authority to enter a judgment of conviction for that crime, because it is not a lesser included offense of unlawful possession of a controlled substance, ORS 475.992, the only offense for which she was indicted. We reverse.

The state concedes that the elements of frequenting are not necessarily included in the statutory definition of possession.[1]
It also acknowledges that the indictment did not allege facts establishing the elements of frequenting. It follows that the trial court lacked authority to convict defendant for that offense. See State v. Moroney, 289 Or. 597, 616 P.2d 471 (1980).

The state argues that we should not consider the trial court’s error, because defendant failed to preserve it below. However, the error is plain on the face of the record. Accordingly, we reverse the conviction.

Reversed.

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