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STATE v. LANDINO

No. 78-3439; CA 12027.

590 P.2d 737 (1979)

38 Or.App. 447

STATE of Oregon, Appellant, v. Michael LANDINO, Respondent.

Court of Appeals of Oregon.

Decided February 20, 1979.

Attorney(s) appearing for the Case

David L. Atkinson, Asst. Dist. Atty., Eugene, argued the cause for appellant. With him on the brief was J. Pat Horton, Dist. Atty., Eugene.

Kenneth A. Morrow, Eugene, argued the cause for respondent. With him on the brief was Morrow & McCrea, P.C., Eugene.

Before SCHWAB, C.J., and THORNTON, TANZER and BUTTLER, JJ.

TANZER, Judge.

The trial court sustained defendant's demurrer to an indictment charging him with sexual abuse of a "female seventeen years of age," and the state appeals. The defendant's theory was that the indictment failed "to allege that the victim did not consent or that the victim was incapable of consent by reason of being mentally defective, mentally incapacitated or physically helpless as required by the statute." ORS 163.415(1) defines the crime:

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