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STATE v. NELSON

C020883CR; A122103.

120 P.3d 538 (2005)

201 Or. App. 715

STATE of Oregon, Respondent, v. James Eldon NELSON, Appellant.

Court of Appeals of Oregon.

Decided September 28, 2005.

Attorney(s) appearing for the Case

James N. Varner, Dundee, filed the opening brief for appellant and waived oral argument.

James Eldon Nelson filed the pro se supplemental appellant's brief.

Denis M. Vannier, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LINDER, Presiding Judge, and EDMONDS and SCHUMAN, Judges.

PER CURIAM.

Defendant was convicted of assault, ORS 163.185, and unlawful use of a weapon, ORS 166.220. On appeal, he assigns error to (1) the sentencing court's classification of his assault conviction under crime seriousness category 10 of the Oregon sentencing guidelines; and (2) the denial of a motion for a judgment of acquittal on the assault charge. The state concedes that, because the indictment did not allege the enhancing factor that the victim did not precipitate...

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