Opinion
C-2859; CA A48317.
Argued and submitted March 29, 1989
Reversed and remanded for a new trial May 3, 1989 reconsideration denied July 7, petition for review allowed August 1, 1989 ( 308 Or. 197) See later issue Oregon Reports
Appeal from the Circuit Court, Baker County, William L. Jackson, Judge.
Steven V. Humber, Salem, argued the cause for appellant. With him on the brief was Gary D. Babcock, Public Defender, Salem.
Diane Lefkow, Assistant Attorney General, Salem, argued the cause for respondent. With her on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
Before Graber, Presiding Judge, and Riggs and Edmonds, Judges.
PER CURIAM
Reversed and remanded for new trial. State v. Ainsworth, 95 Or. App. 240, 770 P.2d 58, rev allowed 308 Or. 158 (1989); State v. Gohring, 95 Or. App. 746, 770 P.2d 614 (1989).
Edmonds, J., concurring.
Riggs, J., dissenting.
I concur with the majority only because a panel of this court has held in a companion case on the same fact, that State v. Ainsworth, 95 Or. App. 240, 770 P.2d 58, rev allowed 308 Or. 158 (1989), controls. State v. Gohring, 95 Or. App. 746, 770 P.2d 614 (1989). Were it not for that fact, I would hold that the facts of this case are distinguishable from Ainsworth.
For the reasons I expressed in my dissent in State v. Ainsworth, 95 Or. App. 240, 770 P.2d 58, rev allowed 308 Or. 158 (1989), I dissent.