State v. Long

• Decision Date: 25 November 1994
• Citation: 320 Or. 361,885 P.2d 696
• Parties: STATE of Oregon, Respondent on Review, v. Ray LONG, Sr., Petitioner on Review. CC 33681; CA A74762; SC S41205.
• Court: Oregon Supreme Court

Page 696

885 P.2d 696

320 Or. 361

STATE of Oregon, Respondent on Review, v. Ray LONG, Sr., Petitioner on Review.

CC 33681; CA A74762; SC S41205.

Supreme Court of Oregon In Banc.

Argued and Submitted Sept. 8, 1994.

Decided Nov. 25, 1994.

John J. Tyner III, of Tyner & Associates, Hillsboro, argued the cause and filed the petition for petitioner on review.

Michael C. Livingston, Asst. Atty. Gen., Salem, argued the cause for respondent on review. With him on the response were Theodore R. Kulongoski, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

VAN HOOMISSEN, Justice.

Defendant appeals his conviction of sodomy in the first degree, former ORS 163.405. He contends that the trial court erred by "allowing the state to amend at trial a material allegation of the indictment" and by "offering an instruction that amounted to an amendment to a material element of the indictment." The Court of Appeals held that the amendment to the indictment did not in any way alter the substantive decision of the grand jury, but was instead simply a permissible amendment as to a defect in form resulting from a scrivener's error, and affirmed. State v. Long, 126 Or.App. 126, 868 P.2d 4 (1994). For the reasons that follow, we also affirm.

The material facts are not in dispute. On July 18, 1984, a grand jury indicted defendant for sodomy. The indictment alleged that the crime occurred "between June 1, 1982 and April 30, 1983." Thereafter, the district attorney sent defense counsel a letter that stated in part:

"When we talked Thursday, I also mentioned to you that the dates set forth in the Indictment are incorrect. They appear to result from a typographical error made at the time the Indictment was returned in 1984. As you know, the police reports clearly indicate that the offense occurred on April 22, 1984. This is the date we will be using at trial with regard to our proof. You indicated that you had noticed the typographical error. If this problem has caused you any inconvenience, I apologize. If you require any additional time to prepare or adjust your defense, we will have no opposition to that."

At the pre-trial omnibus hearing in January 1992, ¹ the state presented evidence that the crime was committed on April 22, 1984. Defendant did not object to that evidence on the ground that it was outside the parameters of the dates alleged in the indictment.

At trial in March 1992, the state again presented evidence that the crime was committed on April 22, 1984. ² Defendant acknowledges that he knew before trial that the state intended to present evidence at trial that the crime was committed on April 22, 1984. ³ As far as the record shows, the district attorney never formally moved to amend the indictment. After the victim and her mother had testified on the first day of trial, the trial court excused the jury for the day. At that time, defendant moved for a judgment of acquittal, arguing that the state had failed to offer evidence that the crime had been committed between June 1, 1982, and April 30, 1983, as alleged in the indictment. As far as the record shows, that was the first time that defendant had raised the issue of the variance between the dates alleged in the indictment and the date relied on by the state at trial. The trial court denied defendant's motion, explaining that the motion was premature, because the state had not yet rested its case-in-chief.

After the state had rested its case-in-chief, defendant moved for a judgment of acquittal, again arguing that the state had failed to offer evidence that the crime had been committed within the dates alleged in the indictment. He relied on Article VII (Amended), section 5(3), of the Oregon Constitution. ⁴ The district attorney responded that: (1) time is not a material element of the crime of sodomy; (2) since at least 1987, defendant had access to the relevant police investigation reports describing the offense; (3) before trial, the district attorney had discussed with defense counsel the fact that, because of a typographical error, the dates in the indictment were incorrect and the state would seek to prove at trial that the crime had occurred on April 22, 1984, as "the police reports clearly indicate"; ⁵ and (4) in testimony at the pretrial omnibus hearing and at trial, the victim and her mother had described defendant's conduct during the period November 1983 through April 1984.

The trial court denied defendant's motion, explaining in part:

"The only way that time can be a material element in a charge of statutory sodomy is if the child were to become * * * a different age during that time frame. Otherwise all that is required is that the crime occurred during the statute of limitations period. The only exception to that as I read these cases and my interpretation of particularly, I think it's the [State v.] Howard [, 214 Or. 611, 331 P.2d 1116 (1958) ]--the [State v.] Neal [, 73 Or.App. 816, 699 P.2d 1171, rev. den. 299 Or. 663, 704 P.2d 514 (1985) ] case--is that the jury must agree on a particular incident that constituted the crime of sodomy. You can't have one [half] of them agree that it was an incident that occurred in June of '83 and the other half of the folks agree it was a crime that occurred in April of '84 and then they would have an agreement that there was sodomy committed during that time frame. They have to agree on a particular incident that constituted the sodomy.'' ⁶

The trial court also specifically found that there had been no actual prejudice to defendant as a result of the variance.

In charging the jury, the trial court stated in part:

"Although the State of Oregon must prove beyond a reasonable doubt that the crime occurred, the exact date or time period when the crime was committed is not a material element in this case. The purpose of the allegation of the date or time period in the charge is to give the Defendant notice of the particular offense with which he is charged. In this case it is sufficient if the State of Oregon establishes that the crime, if any, occurred between the dates of July 20, 1981 and July 19, 1984. What is necessary is that the State of Oregon establish beyond a reasonable doubt that a single particular incident which would constitute the crime of Sodomy in the First Degree occurred within that time period.

"Before you return a verdict of guilty then in this case, at least ten of you must agree upon at least one single incident which would constitute the crime of Sodomy in the First Degree, was committed by the Defendant involving [the victim], and which occurred during the period of July 20, 1981, and July 19, 1984." ⁷

Defendant excepted to the court's quoted instructions, arguing:

"I would only state that essentially what you instructed the jury to do is go out and convict him of a case [sic ] of which he is not charged. In effect you have amended the indictment and have taken to yourself that which the statute and the Constitution say you are not to do. So on that basis I would except."

Defendant was convicted, and he appealed.

On appeal, defendant contended that the trial court erred by "allowing the state to amend at trial a material allegation of the indictment" and by "offering an instruction that amounted to an amendment to a material element of the indictment." He argued that "the amendment effected by the instruction was unconstitutional under Article VII (Amended), section 5(3), because it was an amendment of the substance of the indictment and not an amendment as to form." ⁸

The Court of Appeals disagreed, concluding that "the amendment to the indictment did not in any way alter the substantive decision of the grand jury, but was instead simply a permissible amendment as to a defect in form" resulting from a scrivener's error, which did not frustrate the constitutional objective served by requiring an indictment by grand jury. State v. Long, supra, 126 Or.App. at 129-30, 868 P.2d 4. The court relied on State v. Wimber, 315 Or. 103, 843 P.2d 424 (1992). ⁹

On review, defendant contends that the Court of Appeals improperly applied State v. Wimber, supra, to the facts of this case. As noted, defendant mounts his argument in constitutional terms. The Court of Appeals responded in kind. We believe, however, that most of the answer to defendant's argument in this case lies outside the state and federal constitutions.

ORS 135.717 provides:

"The precise time at which [a criminal] offense was committed need not be stated in the accusatory instrument, but it may be alleged to have been committed at any time before the finding thereof and within the time in which an action may be commenced therefor, except where the time is a material element in the offense." (Emphasis added.)

It has long been the law in this jurisdiction that the precise time when a criminal offense was committed is not a material element of the crime involved here, viz., sodomy.

In State v. Howard, supra, the defendant was charged by indictment with having committed sodomy on September 27, 1957. In spite of the date alleged in the indictment, however, the state elected at trial to prove that the crime actually occurred on August 1, 1957. 214 Or. at 612-13, 331 P.2d 1116. At the conclusion of the state's case, the defendant moved for a directed verdict of acquittal on the ground, inter alia, that there had been an impermissible variance between the indictment and the proof as to the date of the crime. Id. at 614-15, 331 P.2d 1116.

This court affirmed the conviction, holding that

"time is not a material ingredient of the crime of sodomy within the meaning of the statutory exception. The exception relates to those crimes in which time is a significant factor, i.e., where the act is a crime if committed at one time but not if committed at some other time. Thus if a statute should make it a crime to sell liquor on Sunday, time is a material ingredient, because a sale at any other time does not constitute a...