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STATE v. SHAFFER

91-08-34309; CA A73605.

854 P.2d 482 (1993)

121 Or. App. 131

STATE of Oregon, Respondent, v. Robert James SHAFFER, Appellant.

Court of Appeals of Oregon.

Decided June 16, 1993.

Attorney(s) appearing for the Case

David C. Degner, Deputy Public Defender, Salem, argued the cause for appellant. With him on the brief was Sally L. Avera, Public Defender, Salem.

Janet A. Klapstein, Asst. Atty. Gen., Salem, argued the cause for respondent. With her on the brief were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before DEITS, P.J., and RIGGS and DURHAM, JJ.

DEITS, Presiding Judge.

Defendant was convicted after a trial to a jury of second degree assault and first degree criminal mistreatment. ORS 163.175; ORS 163.205. He appeals the assault conviction only, arguing that the trial court erred by instructing the jury on the elements of second degree assault when the indictment alleged only fourth degree assault.1 The state concedes that, because of...

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