Opinion
DA 268836-8312; CA A32168
Argued and submitted December 18, 1984.
Affirmed May 29, 1986. Reconsideration denied August 1, 1986. Petition for review allowed September 9, 1986 ( 301 Or. 765). See later issue Oregon Reports.
Appeal from District Court, Multnomah County, Frank L. Bearden, Judge.
Brenda J. Peterson, Assistant Attorney General, Salem, argued the cause for appellant. With her on the brief were Dave Frohnmayer, Attorney General, and James E. Mountain, Jr., Solicitor General, Salem.
Timothy Grabe, Portland, argued the cause and filed the brief for respondent.
Before Gillette, Presiding Judge, Pro Tempore, and Van Hoomissen and Rossman, Judges.
PER CURIAM
Affirmed. State v. Ray, 79 Or. App. 529, 719 P.2d 922 (1986).
Van Hoomissen, J., dissenting.
I respectfully dissent for the reasons stated in my dissenting opinion in State v. Henry, 78 Or. App. 392, 717 P.2d 189 (1986). It is improper for this court to declare ORS 166.065(1)(e) unconstitutional on vagueness grounds without first considering defendant's appeal under Article I, section 8, of the Oregon Constitution. See State v. Robertson, 293 Or. 402, 414, 649 P.2d 569 (1982).