Opinion
C87-03-31641; CA A46556
Argued and submitted August 30, 1988
Conviction affirmed, as modified; remanded for resentencing on criminal mischief II September 28, 1988
Appeal from the Circuit Court, Multnomah County, Nely Johnson, Judge.
Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.
Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Buttler, Presiding Judge, and Warren and Rossman, Judges.
PER CURIAM
Conviction affirmed, as modified; remanded for resentencing on criminal mischief II.
Defendant appeals his convictions for theft I, ORS 164.055, menacing, ORS 163.190, and criminal mischief I, ORS 164.365, contending that there is insufficient evidence to sustain the convictions.
The evidence is sufficient to sustain the convictions for theft in the first degree and menacing; however, as the state points out, the trial court erred in entering a judgment of conviction for criminal mischief in the first degree. Although the indictment purported to charge defendant with criminal mischief I, it cited the criminal mischief II statute, ORS 164.354, and does not contain any allegation that would make the offense any greater than criminal mischief II. The jury was instructed only on the elements of criminal mischief II, and the jury verdict found defendant guilty of criminal mischief II. It is clear from the trial judge's request for a presentence report and the presentence report that she was aware that she was sentencing defendant on a charge of criminal mischief II, not of criminal mischief I. The error in the judgment clearly appears to be a scrivener's error, but it requires remanding for resentencing.
Conviction affirmed, as modified; remanded for resentencing on criminal mischief II.