
    Argued and submitted January 29,
    affirmed as modified May 13,
    reconsideration denied June 5, petition for review denied June 23,1987 (303 Or 535)
    STATE OF OREGON, Respondent, v. JAMES CRAY YOUNG, Appellant.
    
    (85-CR-0165-JC; CA A40157)
    736 P2d 626
    Gary D. Babcock, Public Defender, Salem, argued the cause and filed the brief for appellant.
    Thomas H. Denney, Assistant Attorney General, Salem, argued the cause for respondent. With him on the brief were Dave Frohnmayer, Attorney General, and Virginia L. Linder, Solicitor General, Salem.
    Before Richardson, Presiding Judge, and Newman and Deits, Judges.
    PER CURIAM
   PER CURIAM

Defendant appeals his conviction for murder, ORS 163.115. He first contends that there was insufficient evidence presented to sustain the conviction. Defendant did not raise the issue at trial, and we decline to address it.

He next contends that the sentences imposed were excessive and constituted cruel and unusual punishment. We conclude that, under all the circumstances, they were not.

The state concedes in its brief and defendant agrees in a supplemental memorandum, that the discretionary minimum sentence imposed pursuant to ORS 163.115(3)(b) and (c) was unlawful. That statute was not in effect at the time of the homicide.

Judgment modified to delete 25-year minimum sentence for murder; otherwise affirmed.  