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FILED: June 11, 2008

IN THE COURT OF APPEALS OF THE STATE OF OREGON

STATE OF OREGON,

Plaintiff-Respondent,

v.

JON NORMAN BERG,

Defendant-Appellant.

Marion County Circuit Court
5C42989
A129341

Joseph C. Guimond, Judge.

Argued and submitted on April 30, 2008.

Eric Johansen, Senior Deputy Public Defender, argued the cause for appellant. With him on the opening brief were Peter A. Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services. With him on the reply brief was Peter Gartlan, Chief Defender, Legal Services Division.

Jonathan H. Fussner, Attorney-In-Charge, Criminal Appeals, argued the cause for respondent. On the brief were Hardy Myers, Attorney General, Mary H. Williams, Solicitor General, and Benjamin R. Hartman, Assistant Attorney General.

Before Haselton, Presiding Judge, and Armstrong, Judge, and Rosenblum, Judge.

PER CURIAM

Affirmed.

PER CURIAM

Defendant appeals a judgment of conviction for witness tampering, ORS 162.285(1), arguing that the evidence was insufficient to establish that an official proceeding was pending at the time defendant induced or attempted to induce the victim to withhold testimony, a material element of the crime. That argument is foreclosed by our recent decision in State v. Bailey, 219 Or App 526, 183 P3d 232 (2008).

Affirmed.