STATE v. JOHNSON

MEMORANDUM OPINION

Petition for review is allowed.

The case is remanded to the Court of Appeals for reconsideration.

Defendant appealed his conviction by a jury of robbery in the first degree. The Court of Appeals reversed the conviction for lack of sufficient evidence to support it, but it ordered entry of judgment of conviction of attempted robbery in the first degree. State v. Johnson, 77 Or. App. 512, 714 P.2d 240 (1986).

Defendant petitioned this court for review. He contended that at trial he asserted that he had renounced and abandoned any attempt to use force and that there was evidence from which a jury might so find, that the jury had no occasion to consider this element of attempt because it found him guilty of the completed crime, and the verdict could not implicitly reject his asserted renunciation when it was based on inadequate evidence, as the Court of Appeals held.

The decision of the Court of Appeals preceded this court's decision in State v. Allen, 301 Or. 35, 717 P.2d 1178 (1986). In Allen we reversed a decision of the Court of Appeals to reduce a conviction of kidnapping in the first degree to kidnapping in the second degree, because an erroneous instruction prevented the jury "from appropriately considering the elements of any lesser included offense or offenses." 301 Or at 41. Believing that the Court of Appeals should consider the implication of our disposition in Allen, supra, on the issue raised by defendant's petition in this case, we allow the petition for review and remand the appeal to the Court of Appeals for consideration in the light of State v. Allen, supra.