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STATE v. DILTS

559 P.2d 1326 (1977)

28 Or.App. 393

STATE of Oregon, Respondent, v. Garland Scott DILTS, Sr., Appellant.

Court of Appeals of Oregon.

Decided February 8, 1977.

Attorney(s) appearing for the Case

Paul J. De Muniz, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Al J. Laue, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and W. Michael Gillette, Sol. Gen., Salem.

Before SCHWAB, C.J., and LEE and TANZER, JJ.

SCHWAB, Chief Judge.

After a jury trial, defendant was convicted of rape in the first degree and attempted sodomy in the first degree. On appeal, defendant assigns as error the trial court's refusal to grant his request that a jury instruction on sexual abuse in the second degree be given.

Defendant argues that, under State v. Washington, 273 Or. 829, 543 P.2d 1058 (1975), the instruction should have been given because...

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