State v. Burnett
| Decision Date | 26 December 2002 |
| Citation | 185 Or.App. 409,60 P.3d 547 |
| Parties | STATE of Oregon, Respondent, v. Glen Delwin BURNETT, Jr., Appellant. |
| Court | Oregon Court of Appeals |
Meredith Allen, Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, Public Defender.
Ann Kelley, Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.
Before LANDAU, Presiding Judge, and DEITS, Chief Judge, and BREWER, Judge.
Defendant appeals from a judgment of conviction for two counts of fleeing or attempting to elude a police officer. ORS 811.540. He contends that the trial court erred in denying his motion for arrest of judgment on the basis that the indictment was defective. We reverse.
In April 1998, defendant was driving a truck with a broken license plate light. Officer Anderson and Officer Jenkins attempted to pull defendant over by activating the overhead lights on their patrol car. Defendant did not pull his vehicle over, but rather continued driving within the speed limit. The officers turned on the patrol car's siren, but defendant continued driving and made several maneuvers that could have been interpreted as evasive. He eventually stopped his vehicle on the shoulder of the road and jumped out. Officer Anderson yelled, "Police, stop." Officer Jenkins also yelled at defendant, directing him to stop. Defendant did not stop but ran off towards an apartment building. At that point, the officers lost sight of him. A citizen, however, had heard the sirens and saw the officers pursuing defendant. The citizen followed defendant and tackled him, restraining him until the officers arrived and took defendant into custody. Both officers testified that they were in a marked patrol car and were in uniform at the time of the encounter.
Defendant was charged by grand jury indictment with, among other things,1 two counts of fleeing or attempting to elude a police officer. ORS 811.540. More specifically, the indictment alleged the following:
A jury found defendant guilty of both counts, and he was sentenced to 18 months' probation. After the final judgment was entered, defendant made a motion in arrest of judgment,2 arguing that the indictment failed to allege the element that the officer was "in uniform and prominently displaying the police officer's badge" or that the officer was "operating a vehicle appropriately marked * * *." ORS 811.540(1)(b). Defendant contended that, because those were material elements of the offense, the failure to include them in the indictment rendered it fatally flawed. The trial court denied defendant's motion, concluding that the indictment was sufficient and that, even if it was not, the jury was properly instructed on the elements and therefore any deficiencies in the indictment were cured.
On appeal, defendant argues that the trial court erred in denying his motion. He contends that, under ORS 811.540, the state was required to allege in the indictment that defendant was eluding an officer who was either in uniform displaying a badge or operating a marked vehicle. Defendant argues that, because the indictment did not allege those elements, it did not state an offense. In response, the state contends that the elements left out of the indictment were not material and that, even if they were, the purposes of an indictment were nevertheless satisfied because defendant was apprised of the allegations against him and the jury was properly instructed.
ORS 811.540(1), which describes the crime of fleeing or attempting to elude a police officer, includes the following elements:
As noted above, both the state and defendant agree that the indictment did not allege either that the officer was in uniform displaying a badge or that the officer was operating a marked police vehicle. An indictment "fails to state facts constituting an offense when it fails to allege each of the essential elements of the offense." State v. Wimber, 315 Or. 103, 109, 843 P.2d 424 (1992) (emphasis added). The parties disagree about whether the requirement of ORS 811.540(1)(b) is an essential element of the crime. Whether an element is essential or material depends upon whether the word can be struck from the indictment without "rendering the pleading vulnerable to demurrer on the ground that it no longer states a crime." State v. Russell, 231 Or. 317, 319, 372 P.2d 770 (1962); see also State v. Long, 320 Or. 361, 885 P.2d 696 (1994). We have held, for example, that elements such as time in a charge of rape, or a specific date in a sodomy case, generally are not material elements because, if the time or date is struck from the indictment, it would not render it subject to demurrer on the basis that it does not state a crime without that information. Wimber, 315 Or. at 109-10,843 P.2d 424; Long, 320 Or. at 368-69,885 P.2d 696.
In this case, however, the element that the officer be in uniform or in an appropriate vehicle is not analogous to information such as a date or time in a sexual assault case. In order to constitute the crime of eluding a police officer, the statute requires that the police officer indicate, by being in uniform and displaying a badge or operating a marked police vehicle, that he or she is, in fact, a police officer. This, of course, ensures that the person being pursued will know that he or she is in fact fleeing a police officer. See State v. Beaman, 42 Or.App. 57, 60, 599 P.2d 476 (1979) (). Without those elements, an indictment does not state the crime of fleeing or attempting to elude a police officer, as defined by the statute. Consequently, we conclude that the element that the officer be in uniform or in an appropriate vehicle is an essential one.
ORS 132.550(7); see also Wimber, 315 Or. at 109, 843 P.2d 424. We recently explained that those standards are consistent with the four objectives that an indictment serves: (1) to provide notice so as to enable the defendant to prepare a defense; (2) to identify the crime so as to provide protection against additional prosecution for the same crime; (3) to inform the court as to what charges are being brought against the defendant; and (4) to ensure that the defendant is tried only for an offense that is based on facts found by the grand jury. See State v. Crampton, 176 Or.App. 62, 67, 31 P.3d 430 (2001) (citing Wimber, 315 Or. at 118-19, 843 P.2d 424).
However, we conclude that, in this case, the indictment does not include any language that can be construed to describe the element missing here, namely, that the officers were in uniform and prominently displaying their badges or that they were operating an appropriately marked police vehicle. As noted above, the indictment simply alleged that defendant was "given a signal to stop by a police officer." No facts are alleged as to how defendant would know that the person attempting to stop him was, in fact, a...
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