State v. Crampton

• Decision Date: 15 August 2001
• Citation: 176 Or. App. 62,31 P.3d 430
• Court: Oregon Court of Appeals
• Parties: STATE of Oregon, Respondent, v. Gregg Leon CRAMPTON, Appellant.

31 P.3d 430

176 Or. App. 62

STATE of Oregon, Respondent, v. Gregg Leon CRAMPTON, Appellant.

98CR0094; A104450

Court of Appeals of Oregon.

Argued and Submitted February 21, 2001.

Decided August 15, 2001.

Jennelle Hall, Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, State Public Defender.

Thomas C. Patton, Assistant Attorney General, argued the cause for respondent. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Before LANDAU, Presiding Judge, and LINDER and BREWER, Judges.

LINDER, J.

Defendant was convicted of possession of a controlled substance, ORS 475.992; unlawful possession of a firearm, ORS 166.250(1)(b) (1997); and unlawful possession of a short-barreled shotgun, ORS 166.272. On appeal, he challenges the sufficiency of the indictment on the ground that the allegations in count 2, relating to unlawful possession of a firearm, failed to state a crime. He also assigns error to the trial court's denial of his motion to suppress evidence obtained as a result of the traffic stop preceding his arrest. We affirm.

We are bound by the trial court's factual findings when supported by the record. State v. Ehly, 317 Or. 66, 75, 854 P.2d 421 (1993). To the extent that the trial court did not make findings concerning matters that were in dispute, "we will presume that the facts were decided in a manner consistent with the ultimate conclusion * * * made by the trial court[.]" Id.; see also Ball v. Gladden, 250 Or. 485, 487, 443 P.2d 621 (1968); State v. Kauffman, 162 Or.App. 402, 986 P.2d 696 (1999), rev. den. 329 Or. 650, 994 P.2d 132 (2000).

While investigating a report of a suspicious car in a convenience store parking lot, Prineville Police Officer Donham saw defendant and recognized him as a person who had been stopped a week earlier and in whose car police had discovered guns and drugs. Officer Donham also learned that defendant's driving privileges were suspended. After defendant drove away from the parking lot, the officer stopped him for driving while suspended. As she approached defendant's car, defendant moved around "a lot" and kept glancing back toward the officer's patrol car. As the officer contacted defendant, he "kept reaching around" and seemed agitated and nervous. The officer asked defendant whether he had consumed any alcohol or drugs and asked him whether he had any guns in the car. Defendant denied consuming alcohol or drugs but told the officer that there was a gun in the back seat and that there "might be" other weapons in the car. The officer asked for defendant's consent to search the car, but defendant refused.

Eventually, a second officer, Sergeant Hensley, arrived and, based on defendant's failure to keep his hands on the steering wheel as requested, ordered defendant out of the car and frisked him. Defendant told Sergeant Hensley that there was a handgun under the front seat. Sergeant Hensley handcuffed defendant and told Officer Donham about the gun. Officer Donham retrieved it. While doing so, she saw a box of ammunition on the front passenger seat. When she opened the passenger door to retrieve the ammunition, Officer Donham found a plastic bag containing a powdery substance that she believed was methamphetamine. Sergeant Hensley transported defendant to the police station. Officer Donham then searched the entire car. Her search included opening a locked toolbox in which she discovered cash, baggies, a 9mm pistol, a sawed-off shotgun, and four loaded gun magazines. The officer also examined the contents of two "long cases" in which she discovered a rifle, ammunition, and other weapons-related paraphernalia.

Defendant was charged with multiple offenses, including unlawful possession of a firearm, which count 2 of the indictment alleged to have been committed as follows:

"UNLAWFUL POSSESSION OF A WEAPON ORS 166.250

"The said defendant, on or about April 22, 1998, in Crook County, Oregon, did unlawfully and knowingly carry concealed and readily accessible to the person within the vehicle which was under the defendant's direction and control, a handgun."

Defendant did not demur to or otherwise challenge the indictment. In a pretrial motion, he moved to suppress evidence obtained as a result of the traffic stop. The trial court denied the motion, and defendant was convicted.

On appeal, defendant first asserts that the facts stated in the unlawful possession of a weapon count of the indictment (quoted above) do not constitute a crime, because there was no allegation that defendant lacked a concealed weapons permit. According to defendant, the indictment was fatally defective because, even if he had admitted all of the allegations in that count, he would not have been guilty of a crime. The state responds that, even assuming that the lack of a permit is an element of the offense provided in ORS 166.250(1)(b) (1997),¹ the word "unlawfully" sufficed as an allegation of that element. According to the state, the indictment's use of the word "unlawfully" necessarily informed defendant that the state intended to prove that he did not have a permit and also precluded defendant from being able to admit all of the allegations in the indictment without being guilty of a crime. The state also argues that there is little likelihood that defendant was confused or surprised by the wording of the indictment, because the offense of unlawful possession of a weapon is not complex in nature and because evidence of defendant's lack of a permit was introduced at a pretrial hearing. Further, in the state's view, any defect was merely one of form, not substance. Finally, the state argues that, even assuming that the indictment was defective in the manner asserted by defendant, any defect was "cured" by the verdict.

A defendant may raise for the first time on appeal a demurrer to an indictment on the ground of failure to state facts constituting an offense, as provided in ORS 135.630(4). State v. Young, 161 Or.App. 507, 509-11, 985 P.2d 835 (1999),rev. den. 329 Or. 590, 994 P.2d 131 (2000).² Under ORS 135.630(4), 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); State v. Maxwell, 165 Or.App. 467, 477, 998 P.2d 680 (2000). An indictment pleaded in the language of the relevant statute ordinarily is sufficient to withstand a demurrer. See, e.g., State v. Lotches, 331 Or. 455, 466, 17 P.3d 1045 (2000),cert pending (2001). But that is not to say that an indictment must be pleaded in the language of the relevant statute. Rather, under ORS 132.540(3), "[w]ords used in a statute to define a crime need not be strictly pursued in the indictment, but other words conveying the same meaning may be used." Thus, when an indictment is not pleaded in the language of the statute, it will withstand a challenge on the ground that the facts stated do not constitute a crime if it contains

"[a] statement of the acts constituting the offense in ordinary and concise language, without repitition [sic ], and in such manner as to enable a person of common understanding to know what is intended[.]"

Wimber, 315 Or. at 109, 843 P.2d 424 (citing and quoting State v. Holland, 202 Or. 656, 669, 277 P.2d 386 (1954); internal quotation marks omitted). Those standards are consistent with the four objectives that an indictment serves: (1) to provide notice—i.e., to furnish the defendant with sufficient notice so as to enable him or her to properly prepare a defense; (2) to secure a defendant's right against double jeopardy—i.e., to identify the crime so as to provide protection against further prosecution based on the same crime; (3) to facilitate judicial review—i.e., to inform the court as to the facts charged, so that the court may determine whether the prosecution's case is based on a legally valid interpretation of the offense; and (4) to secure the court's jurisdiction—i.e., to ensure that the defendant is tried only for an offense that is based on facts found by a grand jury. See Wimber, 315 Or. at 118-19, 843 P.2d 424 (Unis, J., dissenting) (synthesizing cases).

As a threshold matter, the state does not dispute that, under ORS 166.250(1)(b), lack of a permit or license is an element of the offense of unlawful possession of a firearm. At least for purposes of this case, the state is willing to assume that it is, consistently with our decision in State v. Brust, 158 Or.App. 455, 974 P.2d 734, rev. den. 329 Or. 61, 994 P.2d 120 (1999). In Brust, this court concluded that the lack of a permit or license to carry the firearm is "a necessary ingredient of the definition of the crime" and the state therefore must "prove, as an element of the offense," that the defendant did not have a license to carry the firearm. Consistently with Brust, an indictment for unlawful possession of a weapon under ORS 166.250(1)(b) must contain a factual allegation relating to that element. The issue in this case therefore is whether an allegation that defendant "unlawfully" possessed the firearm is sufficient to state that element, which is an issue that we review as a matter of law. See ORS 138.220.

We conclude that the indictment was sufficient. The word "unlawful" is a word of common usage; it means "not authorized or justified by law: not permitted or warranted by law." See Webster's Third New Int'l Dictionary, 2502 (unabridged ed 1993). Accordingly, although count 2 of the indictment was not pleaded in the precise language of ORS 166.250(1)(b), the disputed allegation consisted of "ordinary and concise language." Wimber, 315 Or. at 109, 843 P.2d 424. Using the ordinary understanding of the term "unlawfully," the indictment effectively alleged that defendant "without legal authorization or justification" knowingly carried a handgun concealed and readily accessible to him in a vehicle. Such an...