State v. Hansz
Decision Date | 03 May 2000 |
Citation | 167 Or. App. 147,5 P.3d 1109 |
Parties | STATE of Oregon, Respondent, v. Jonathan Michael HANSZ, Appellant. |
Court | Oregon Court of Appeals |
Wayne Mackeson, Portland, argued the cause and filed the brief for appellant.
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.
Defendant was tried and convicted on stipulated facts for unlawful possession of a Schedule II controlled substance. ORS 475.992(4)(b). In a single assignment of error, defendant argues that the trial court erred in overruling his objection to an amendment by interlineation of the charging instrument that changed the identity of the controlled substance in question from cocaine to methamphetamine. Defendant asserts that the amendment was impermissible because it altered the essential nature of the charge. We disagree and, therefore, affirm.
On February 24, 1996, defendant was apprehended after he stole merchandise from a store. When defendant was searched incident to arrest, police found a bamboo pipe in his possession that contained residue of methamphetamine. As a result, defendant was charged in a district attorney's information with theft in the second degree, ORS 164.045, and unlawful possession of a controlled substance. Count 2 of the information alleged:
"The said defendant on or about February 24, 1996, in the County of Multnomah, State of Oregon, did unlawfully, intentionally and knowingly possess a controlled substance, to-wit: cocaine, listed in Schedule II, contrary to the Statutes in such cases made and provided and against the peace and dignity of the State of Oregon." (Emphasis added.)
After his arraignment, defendant petitioned to enter the court's drug treatment diversion program (STOP) and the court admitted defendant into the program. As a condition of admission, defendant executed the following written agreement:
The laboratory report referred to in paragraph 4 of the STOP agreement identified the substance found in defendant's possession as "methamphetamine, a Schedule II controlled substance."
In July 1996, the trial court revoked defendant's release agreement and issued a warrant for his arrest after he failed to appear as required by the terms of the STOP program. Defendant was taken into custody on the warrant in April 1998 and, when brought before the court, sought reinstatement in the program. On April 29, the trial court denied defendant's request and, in open court, announced its intention to proceed with a stipulated facts trial because of defendant's noncompliance with the STOP agreement. At the same hearing, the prosecutor requested leave to amend count 2 of the information to "change the controlled substance from cocaine to methamphetamine." The court granted the state's motion despite defendant's objection and set trial for the following day. On April 30, the court proceeded to trial on stipulated facts as provided in the STOP agreement. The court received in evidence the police reports and the police laboratory report that identified the substance in defendant's possession as methamphetamine. The court found defendant guilty of both counts in the amended information and entered a judgment of conviction accordingly.
Defendant appeals only from his conviction for unlawful possession of a controlled substance. Defendant asserts that the trial court had no authority to permit the amendment of the information, because the defect in the original information—its failure to identify correctly the controlled substance he possessed—was one of substance rather than form. Therefore, defendant reasons, the state could not proceed to trial without first either obtaining a grand jury indictment on the charge or, alternatively, a waiver of indictment by defendant or a determination of probable cause from the court following a preliminary hearing. Because the state pursued none of those options, defendant contends that his conviction must be reversed.
In State v. Wimber, 315 Or. 103, 113, 843 P.2d 424 (1992), the Supreme Court recognized that, under Article VII (Amended), section 5, of the Oregon Constitution, a trial court may permit the amendment of a charging instrument that is defective in form but may not permit the amendment of a defect in substance. The court adopted a four-part test for determining whether a defect in a charging instrument is one of form or substance:
The answers to three of the four Wimber inquiries are straightforward; each suggests that the amendment in this case was one of form. As to the second question, defendant concedes that his right to notice of the charges against him was not prejudiced by the amendment. Defendant "stipulated" to the laboratory report in the STOP agreement. The error that was corrected by the amendment to the information was readily apparent from the discrepancy between the laboratory report that identified the substance in his possession as methamphetamine and the original information that described it as cocaine. In addition, the correction of the error did not expose defendant to the risk of double jeopardy.1 The laboratory report proved that the pipe in defendant's possession contained only methamphetamine—not cocaine. With respect to the third inquiry, defendant makes no argument that the amendment was indefinite or uncertain; to the contrary, it was specific and clear. The fourth element of the Wimber test is inapplicable here because the amendment merely substituted one controlled substance for another, as opposed to deleting material from the information. Therefore, we focus, as does defendant, on the first Wimber inquiry.
From that premise, defendant urges, the substitution of one controlled substance for another altered the essential nature of the charge against him.
A matter that is essential to show that an offense has been committed is one of substance and not of form. Id. In order to determine what is necessary to show that defendant committed an offense, we must examine the statute under which defendant was charged, ORS 475.992. That statute provides, in part:
Generally speaking, a charging instrument is sufficient if it alleges an offense in the language of the statute defining that offense. State v. Fair, 326 Or. 485, 490, 953 P.2d 383 (1998). An exception exists where discovery is unlikely to inform the defendant of the specific criminal conduct the state intends to prove. See State v. Cooper, 78 Or.App. 237, 240, 715 P.2d 504 (1986). Such is not the case where a defendant is charged with unlawful possession of a controlled substance. Here, as is typically the case, the identity of the particular substance involved was established by a forensic laboratory report available through discovery. Excluding the specific identification of the substance possessed, the original and amended information each alleged the offense charged in the language of ORS 475.992(4)(b). The additional language...
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...contrast, here, defendant had no right in the first instance to be charged by indictment under section 5. Similarly, in State v. Hansz, 167 Or.App. 147, 149, 5 P.3d 1109, rev. den., 331 Or. 244, 18 P.3d 1099 (2000), the information charged a felony. The defendant's waiver of an indictment o......
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...P.3d 1099 331 Or. 244 State v. Hansz. No. S47758. Supreme Court of Oregon. October 24, 2000. Appeal from No. A102267, 167 Or.App. 147, 5 P.3d 1109. Petition for review is ...