Opinion
90-09-5071-C; CA A68887
Submitted on record and briefs December 26, 1991
Sodomy conviction reversed and remanded for new trial; otherwise affirmed June 3, 1992 Reconsideration denied July 1, 1992 Petition for review allowed October 27, 1992 ( 314 Or. 573) See later issue Oregon Reports
Appeal from Circuit Court, Malheur County.
J. Burdette Pratt, Judge pro tempore.
Henry M. Silberblatt, Portland, filed the brief for appellant.
Dave Frohnmayer, Attorney General, Virginia L. Linder, Solicitor General, and Thomas H. Denney, Assistant Attorney General, Salem, filed the brief for respondent.
Before Richardson, Presiding Judge, and Deits and Durham, Judges.
PER CURIAM
Sodomy conviction reversed and remanded for a new trial; otherwise affirmed.
Defendant appeals his convictions for sodomy in the second degree, ORS 163.395, and sexual abuse in the second degree. ORS 163.425. He contends that the court erred by admitting comments of one witness about the credibility of another witness. There was no objection to the testimony, and it was not otherwise contested. We decline to review the assignment. He also contends that evidence about the victim's treatment program was erroneously admitted over his objection that it was irrelevant. It was relevant to explain why the victim delayed reporting the incident.
The state notes that the indictment cannot support defendant's conviction for sodomy in the second degree. Count I of the indictment alleged sodomy in the third degree. ORS 163.385. The state agrees that, even though defendant has not raised the issue, it is an error apparent on the face of the record. A court does not have authority to enter a conviction for a crime not charged. See Riggs v. State of Oregon, 50 Or. App. 109, 622 P.2d 327 (1981); State v. Stevenson, 2 Or. App. 38, 465 P.2d 720 (1970).
Sodomy conviction reversed and remanded for a new trial; otherwise affirmed.