Opinion
C9010-35924; CA A69194
Submitted on record and briefs December 19, 1991
Affirmed February 12, 1992
Appeal from Circuit Court, Multnomah County.
Nely L. Johnson, Judge.
Stephen Shurin, Portland, filed the brief for appellant.
Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, Salem, filed the brief for respondent.
Before Richardson, Presiding Judge, and Deits and Durham, Judges.
PER CURIAM
Affirmed.
Defendant was indicted on two counts of delivery of a controlled substance. ORS 475.992. The first count charged that he committed the crime as part of a drug cultivation, manufacture or delivery scheme or network, but the second count did not. The court overruled defendant's demurrer and alternative motion to strike, which alleged that the scheme or network language was unconstitutionally vague. State v. Moeller, 105 Or. App. 434, 806 P.2d 130, rev dismissed 312 Or. 76, 815 P.2d 701 (1991). In a trial to the court on stipulated facts, defendant was convicted only on count 2 of the indictment.
Defendant's only assignment of error is based on our decision in Moeller. Because he was convicted only on count 2, which did not allege participation in a scheme or network, the assignment of error is moot.
Affirmed.