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STATE v. DAVIS

10-84-06996 and 10-84-07682; CA A34677 and A34678.

708 P.2d 651 (1985)

76 Or.App. 394

STATE of Oregon, Respondent, v. Cecil James DAVIS, Appellant.

Court of Appeals of Oregon.

Decided November 14, 1985.

Attorney(s) appearing for the Case

Stephen J. Williams, 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 WARDEN and NEWMAN, JJ.

PER CURIAM.

Defendant was convicted for burglary in the first degree, theft in the first degree and possession of a controlled substance. He appeals only the conviction for burglary. The charge and conviction was for first degree burglary based on the use of a burglary tool: a power drill. ORS 164.225(1)(a). The state concedes that the power drill was not proven to be a burglary tool. State v. Graves, 299 Or. 189,

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