State v. Kuznetsov

• Decision Date: 31 October 2007
• Docket Number: A129453.,A129452 (Control).,CR03113871.,CR0314194.,A129454.
• Citation: 215 Or. App. 533,170 P.3d 1130
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Veniamin N. KUZNETSOV, Defendant-Appellant.
• Court: Oregon Court of Appeals

170 P.3d 1130

215 Or. App. 533

STATE of Oregon, Plaintiff-Respondent, v. Veniamin N. KUZNETSOV, Defendant-Appellant.

CR03113871.

CR0314194.

A129452 (Control).

A129453.

A129454.

Court of Appeals of Oregon.

Argued and Submitted August 31, 2007.

Decided October 31, 2007.

Kristin Carveth, Deputy Public Defender, argued the cause for appellant. With her on the brief were Peter Ozanne, Executive Director, and Peter Gartlan, Chief Defender, Legal Services Division, Office of Public Defense Services.

Kaye E. McDonald, Senior Assistant Attorney General, argued the cause for respondent. With her on the brief were Hardy Myers, Attorney General, and Mary H. Williams, Solicitor General.

Before LANDAU, Presiding Judge, and BREWER, Chief Judge, and ORTEGA, Judge.

BREWER, C.J.

Defendant was charged by information with, among other offenses, misdemeanor assault in the fourth degree. ORS 163.160(1). The information alleged that, with a criminally negligent mental state, defendant caused physical injury to the victim with a deadly weapon, a vehicle. However, a vehicle is not a deadly weapon. See State v. Hill, 298 Or. 270, 273, 692 P.2d 100 (1984). Accordingly, the pertinent statute required the state to allege and prove that defendant at least recklessly caused physical injury to the victim. In order to resolve the problem with the charging instrument, the trial court allowed the state on the day of trial to file an amended information deleting the allegation that the vehicle was a deadly weapon and alleging that defendant acted recklessly.

Defendant objected to the amendment, arguing that it was one of substance, not form, and that Article VII (Amended), section 5(6), of the Oregon Constitution therefore prohibited the court from allowing the amendment. The trial court overruled the objection and allowed the amendment, and a jury convicted defendant of the charged offense based on the amended information. On appeal, defendant renews his constitutional argument that the amendment was impermissible. We affirm.

The pertinent historical facts are undisputed. Defendant drove his vehicle into the side of a minivan driven by the victim. The minivan was totaled, and the victim was hospitalized with physical injuries. Defendant was charged with multiple offenses, including fourth-degree assault. ORS 163.160(1).¹ As discussed, on the day of trial, the court allowed the state to file an amended information elevating the charged mental state from criminal negligence to recklessness under ORS 163.160(1)(a), based on the state's belated realization that defendant's vehicle was not a deadly weapon for purposes of ORS 163.160(1)(b). See, e.g., State v. Pachmayr, 213 Or.App. 665, 668, 162 P.3d 347 rev. allowed., 343 Or. 363, 169 P.3d 1268 (2007) (noting state's acknowledgment that a vehicle is not a "deadly weapon" for purposes of assault statutes). We review defendant's constitutional challenge to that decision for errors of law.

Defendant argues that the amendment was prohibited by Article VII (Amended), section 5(6). Section 5, which was amended to its current form by the people in 1974, 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."

(Emphasis added.) Defendant argues that, by negative implication, subsection (6) prohibits the substantive amendment of an information, because, as with amendments to grand jury indictments, that provision authorizes the amendment of informations only with respect to defects as to form.

In analyzing defendant's argument, we consider the specific wording of Article VII (Amended), section 5(6), the case law surrounding it, and the historical circumstances that led to its creation. See Priest v. Pearce, 314 Or. 411, 415-16, 840 P.2d 65 (1992) (stating methodology for interpreting constitutional provisions). We begin with the text of the provision.

A review of the text, in context, of subsection (6) reveals two immediate clues to the problem at hand. First, the subject matter of subsections (3), (4), and (5) of section 5 is felony, not misdemeanor, charging instruments. In particular, each of those subsections exclusively refers to the use of felony, not misdemeanor, charging instruments. As explained below, that exclusive focus meaningfully informs our interpretation of subsection (6). Second, it also is notable that subsection (6) is not framed in terms of a prohibition; instead, it is permissive, affirmatively allowing the amendment of an indictment or information as to matters of form. It is with those clues in mind that we examine the pertinent case law and the historical circumstances surrounding the 1974 amendment of section 5.

Defendant argues that case law interpreting section 5 prohibits substantive amendments to indictments and that subsection (6) treats indictments and informations interchangeably. It follows, defendant urges, that subsection (6) prohibits the substantive amendment of any information, including one that charges a misdemeanor. Defendant primarily relies on the Supreme Court's decision in State v. Wimber, 315 Or. 103, 843 P.2d 424 (1992). In Wimber, the Supreme Court divided the universe of amendments to indictments into two categories-form and substance. Id. at 113-15, 843 P.2d 424. It reasoned that a change that affects the substance of an indictment can be made only by a grand jury. Id. at 113, 843 P.2d 424. A trial court may amend an indictment only as to matters of form. Id. The court then held that deleting dates to shorten the relevant time frame alleged in the indictment was a permissible change to the form of the indictment. Id. at 116, 843 P.2d 424. In reaching its conclusion, the court adopted a four-part test to determine whether an amendment of an indictment constitutes a permissible change to form or an impermissible change to substance.

Wimber set out those four questions as follows:

"(1) Did the amendment alter the essential nature of the indictment against defendant, alter the availability to him of defenses or evidence, or add a theory, element, or crime? * * *

"(2) Did the amendment prejudice defendant's right to notice of the charges against him and to protection against double jeopardy? * * *

"(3) Was the amendment itself sufficiently definite and certain? * * *

"[If] the amendment deleted allegations, we ask one additional question.

"(4) Did the remaining allegations in the indictment state the essential elements of the offenses?"

Id. at 114-15, 843 P.2d 424.

It is undisputed that the alteration of the charged mental state in the amended information in this case was a "substantive" amendment in the parlance of Wimber, because it changed the state's theory of the case from a criminally negligent assault with a deadly weapon under ORS 163.160(1)(a) to a reckless assault without the use of a deadly weapon under ORS 163.160(1)(b). The question remains whether the Wimber analysis applies here, where, unlike in that case, the charging instrument was not a grand jury indictment but, rather, was a misdemeanor information. We conclude that it does not.

The prohibition against substantive amendments to indictments does not derive from subsection (6), but, rather, stems from the right to indictment by grand jury or, in the case of felony informations, the right to a preliminary hearing. See Or. Const., Art. VII (Amended), § 5(3)-(5). Those subsections do not provide any rights to persons charged with misdemeanors. Read in that context, subsection (6) most reasonably refers to indictments and informations that charge felonies.

Wimber supports that analysis. In concluding in Wimber that substantive amendments must be approved by a grand jury, the court relied on State v. Moyer, 76 Or. 396 399, 149 P. 84 (1915), in which the court held that the Oregon Constitution authorized the amendment of an indictment as to form, but that an amendment as to substance is unauthorized unless approved by a grand jury or authorized by law. Although the pertinent constitutional provisions had been amended over the intervening years, the court explained its reliance on Moyer as follows:

"[Moyer] was decided in 1915, almost 60 years before the adoption of Article VII (Amended), section 5, in 1974. The applicable phrases in the constitution were nearly identical, however. Article VII, section 18, provided in part:

"`No person shall be charged in any circuit court with the commission of any crime or misdemeanor defined or made punishable by any of the laws of this state, except upon indictment found by a grand jury; provided, however, that any district attorney may file an amended indictment whenever an indictment has, by a ruling of the court, been held to be defective in form[.]'"

Wimber, 315 Or. at 113 n. 19, 843 P.2d 424.

Because Wimber involved an indictment, the court in that case had no need to refer to the following statement in Moyer:

"There seems to be a distinction made in all of the text-books as to the amendment of matters in an indictment and matters in an...