State v. Taylor

PER CURIAM Defendant was indicted for robbery in the first degree, ORS 164.415, and robbery in the second degree. ORS 164.405. The court, sitting without a jury, found him guilty of assault in the second degree, ORS 163.175, which it concluded is a lesser included offense of robbery, and of theft in the second degree. ORS 164.045.1 Defendant contends, and the state concedes, that the court erred in finding him guilty of assault, because it is not a lesser included offense of robbery in the first or second degree. We agree. State v. Cartwright, 40 Or App 593, 595 P2d 1289 (1979). Conviction for assault reversed; remanded for resentencing; otherwise affirmed. Footnotes [1] Defendant does not challenge his conviction for theft.