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STATE v. ROSS

No. C82-12-38741; CA A27996.

674 P.2d 85 (1984)

66 Or.App. 504

STATE of Oregon, Respondent, v. Wyartt Eugene ROSS, Appellant.

Court of Appeals of Oregon.

Decided January 11, 1984.

Attorney(s) appearing for the Case

J. Marvin Kuhn, Chief Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and James E. Mountain, Jr., Sol. Gen., Salem.

Before RICHARDSON, P.J., and VAN HOOMISSEN and NEWMAN, JJ.

PER CURIAM.

Defendant appeals his conviction for robbery in the first degree. He assigns as error the trial court's instruction to the jury that it could only consider the lesser included offense of robbery in the second degree if it first found defendant was not guilty of robbery in the first degree. The state confesses error if we find the error was preserved below. State v. Ogden, 35 Or.App. 91, 97, 580...

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