State v. Delaportilla, 279 P.3d 824

Defendant was convicted of first- and second-degree assaults, two counts of third-degree assault, and a strangulation count.
On appeal, Schuman challenged the trial court’s denial of judgment of acquittal on Counts 1, 2, 3, and 5.
This court previously reversed Count 2 for second-degree assault and remanded for entry of a third-degree conviction for the same victim.
The remand relied on the indictment and convictions showing a 10-year-old victim and at least 18-year-old offender, respectively.
Schuman filed a petition for reconsideration challenging the remand for third-degree conviction and argued it was not a proper lesser-included offense.
The court ultimately held that a conviction cannot be entered for an offense not indicted, and remanded for a fourth-degree assault conviction instead.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether remand for third-degree assault was proper	State argues remand is proper under Article VII and the same age-based predicate.	Schuman argues third-degree is not a lesser-included offense of Count 2 and cannot be imported from other counts.	Remand for third-degree was improper; remand to fourth-degree.
Whether a court may enter a lesser offense on remand not indicted	State relies on Article VII to reform judgment to a lesser offense.	Schuman asserts only lesser-included offenses can be entered; cannot shift elements across counts.	A court cannot enter a non-indicted lesser offense; reversal and fourth-degree remand proper.
Whether elements from other counts can support a remand for a lesser offense	State contends facts from other counts support a lesser offense on remand.	Schuman contends elements must be within the same count’s indictment.	Elements cannot be borrowed across counts to support remand.
Whether Drake/Johnson limit on cross-count borrowing governs remand	State cites Drake/Johnson to permit cross-count reasoning.	Schuman relies on those cases to require count-specific lesser offenses.	Drake/Johnson control; shifting across counts not permitted.

State v. Drake, 113 Or App 16 (1992) (lesser-included concept not expanded across counts for sentencing)
State v. Johnson, 80 Or App 350 (1986) (indictment specificity limits across counts (overruled in part))
State v. Cook, 163 Or App 578 (1999) (elements of lesser offense must be subsumed or expressly in same charging instrument)
State v. Woodson, 315 Or 314 (1993) (lesser-included offenses may be addressed on remand)
State v. Hale, 335 Or 612 (2003) (multiple theories of responsibility may support a conviction)
State v. Delaportilla, 247 Or App 316 (2011) (remand based on underlying factual predicates acknowledged)