State v. Kuznetsov

• Decision Date: 18 December 2008
• Docket Number: (CC CR0313871.,A129454.,CA A129452 (Control).,SC S055487).,A129453.,CR0314194
• Citation: 345 Or. 479,199 P.3d 311
• Parties: STATE of Oregon, Respondent on Review, v. Veniamin N. KUZNETSOV, Petitioner on Review.
• Court: Oregon Supreme Court

199 P.3d 311

345 Or. 479

STATE of Oregon, Respondent on Review, v. Veniamin N. KUZNETSOV, Petitioner on Review.

(CC CR0313871.

CR0314194

CA A129452 (Control).

A129453.

A129454.

SC S055487).

Supreme Court of Oregon, En Banc.

Argued and Submitted September 15, 2008.

Decided December 18, 2008.

On review from the Court of Appeals.^*

Kristin A. Carveth, Deputy Public Defender, Salem, argued the cause and filed the brief for petitioner on review. With her on the brief was Peter Gartlan, Chief Defender, Office of Public Defense Services, Legal Services Division.

David B. Thompson, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. With him on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

WALTERS, J.

In this case, we address whether Article VII (Amended), section 5, of the Oregon Constitution prohibits a trial court from allowing a substantive amendment to an information charging a misdemeanor and, if not, whether the trial court has authority to do so.

The facts that present those issues arose in April 2003, when defendant drove his vehicle into the side of victim's minivan, injuring victim severely enough to require hospitalization. In December 2003, the state charged defendant by information with multiple misdemeanor offenses arising out of the collision, including fourth-degree assault. ORS 163.160(1) sets forth the elements of fourth-degree assault and provides, in part:

"A person commits the crime of assault in the fourth degree if the person:

"(a) Intentionally, knowingly or recklessly causes physical injury to another; or

"(b) With criminal negligence causes physical injury to another by means of a deadly weapon."

The state alleged, under paragraph (b) of that statute, that defendant, acting with criminal negligence, injured victim with a deadly weapon — a vehicle.

After defendant had failed to appear at multiple hearings resulting in the issuance of bench warrants, the case was set for trial in May 2005. On the date of trial, the state moved to file an "amended information." The state had determined that the original information contained a potential defect. ORS 161.015(2) defines a "deadly weapon" as "any instrument * * * specifically designed for and presently capable of causing death or serious physical injury." However, an ordinary road vehicle may not meet that definition. See State v. Pachmayr, 344 Or. 482, 485, 185 P.3d 1103 (2008) (distinguishing dangerous from deadly weapons and indicating that the state may be required to adduce evidence to demonstrate that a vehicle is a deadly, as opposed to a dangerous, weapon). In its proposed amended information, the state deleted the allegations that brought the charge under ORS 163.160(1)(b) — that defendant had acted with criminal negligence and caused injury by means of a deadly weapon — and substituted an allegation that defendant had acted recklessly, thereby bringing the charge under paragraph (a) of ORS 163.160(1).

Defendant opposed the state's motion and argued that the state effectively was seeking to charge a new crime and was precluded from making that substantive amendment to the information. Moreover, defendant asserted, by the time the state sought to file the amended information, the two-year statute of limitations for bringing a charge of fourth-degree assault had run. See ORS 131.125(6)(b) (state must commence prosecution for fourth-degree assault within two years of the commission of the offense). It followed, defendant asserted, that that charge should be dismissed.

The state responded that it was "merely fixing a technical mistake," and the trial court permitted the amendment. The trial court determined that the amendment did not prejudice defendant because he "ha[d] been provided with * * * all of the discovery * * * which would give [him] notice, factually, of the various offense[s] that could, in fact, be charged." It further found that the statute of limitations had been tolled "by the defendant's unauthorized departure for a year and a half." See ORS 131.145(2) ("the period of limitation does not run during * * * [a]ny time when the accused hides within the state so as to prevent process being served upon the accused"). Consequently, the trial court allowed the filing of the amended information. The jury then convicted defendant of multiple charges, including fourth-degree assault.

Defendant timely appealed, arguing that Article VII (Amended), section 5(6), of the Oregon Constitution precluded the trial court from allowing a substantive amendment to an information such as the one that the trial court had granted and, alternatively, that the trial court lacked authority to grant the state's motion to amend the indictment. The Court of Appeals held that Article VII (Amended), section 5, does not prohibit substantive amendments to misdemeanor informations and declined to consider defendant's alternative argument because he did not raise it until oral argument. State v. Kuznetsov, 215 Or.App. 533, 543 n. 4, 170 P.3d 1130 (2007). For the reasons set out below, we agree with the construction of the Oregon Constitution that the Court of Appeals adopted. We also reach defendant's alternative argument and conclude that the trial court had authority to permit the substantive amendment of a misdemeanor information.

Article VII (Amended), section 5, articulates the constitutional requirements for the issuance of criminal charges and provides, in part:

"(3) Except as provided in subsections (4) and (5) of this section, a person shall be charged in a circuit court with the commission of any crime punishable as a felony only on indictment by a grand jury.

"(4) The district attorney may charge a person on an information filed in circuit court of a crime punishable as a felony if the person appears before the judge of the circuit court and knowingly waives indictment.

"(5) The district attorney may charge a person on an information filed in circuit court if, after a preliminary hearing before a magistrate, the person has been held to answer upon a showing of probable cause that a crime punishable as a felony has been committed and that the person has committed it, or if the person knowingly waives preliminary hearing.

"(6) An information shall be substantially in the form provided by law for an indictment. The district attorney may file an amended indictment or information whenever, by ruling of the court, an indictment or information is held to be defective in form."

Subsections (3) to (5) of Article VII (Amended), section 5, set forth the accusatory instruments required to charge a "crime punishable as a felony." Those subsections specify that, when alleging the commission of a felony, the state either must secure an indictment from a grand jury or file an information. If the state proceeds by information, then the defendant is entitled to a preliminary hearing before a magistrate. Thus, absent a waiver, the state cannot charge a defendant with a felony unless persons outside the office of the prosecutor — either grand jurors, in the context of an indictment, or a magistrate, in the context of an information — determine that the state has probable cause to move forward with that charge.

Subsection (6) of Article VII (Amended), section 5, addresses the amendment of those accusatory instruments and provides that the state may file an amended "indictment or information" when a court rules that that instrument is "defective in form." Although that text is permissive, this court has long recognized that we must read it in conjunction with subsections (3) to (5) of section 5 and that, when read together, those provisions impose limits on the power of the prosecutor. The constitutionally required roles of the grand jury and the magistrate in felony cases operate as a check on the power of the district attorney and serve a critical function in protecting individual liberties. See Pachmayr, 344 Or. at 495, 185 P.3d 1103; State v. Burleson, 342 Or. 697, 703, 160 P.3d 624 (2007) (discussing role of grand jury); see also State v. Freeland, 295 Or. 367, 369, 667 P.2d 509 (1983) (discussing role of magistrate). Thus, this court has held that, although Article VII (Amended), section 5(6), permits district attorneys to file amended accusatory instruments to correct defects that are purely matters of form, the state must return to the grand jury or a magistrate if it wishes to make substantive amendments to felony indictments or informations. State v. Wimber, 315 Or. 103, 113, 843 P.2d 424 (1992).

In this case, defendant asserts that Article VII (Amended), section 5, also places constraints on the substantive amendment of a misdemeanor information. Defendant argues that those constraints precluded the state from seeking, and the trial court from allowing, the amendment to the information used to charge defendant. Defendant begins with the premise that the state sought an amendment of substance and not of form. Amendments to those allegations "that are essential to the charge" are considered matters of substance; all "[o]ther nonessential allegations are matters of form." Pachmayr, 344 Or. at 489, 185 P.3d 1103; see also Wimber, 315 Or. at 114, 843 P.2d 424 ("A matter that is essential to show that an offense has been committed is a matter of substance."). The state now concedes, and we agree, that the mental state with which defendant acted is a fact essential to the charge of fourth-degree assault and, thus, an amendment to the allegation of that fact is substantive in nature.

Defendant next argues that, unlike the subsections that precede it, subsection (6) of Article VII (Amended), section 5, does not state that it applies solely to crimes punishable as felonies and that, as a result, the state could seek, and the court could permit, only amendments to the form of the information. Defendant's argument overlooks, however, the source of the...