State v. Morgan
Decision Date | 24 December 1997 |
Citation | 151 Or.App. 750,951 P.2d 187 |
Parties | STATE of Oregon, Appellant, v. Brett Allen MORGAN; Angela Middleton; and Shane Scott Hall, Respondents. 96CR1097FA, 96CR1097FB, 96CR1097FC; CA A95034. |
Court | Oregon Court of Appeals |
Janet A. Klapstein, Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Virginia L. Linder, Solicitor General.
Charles F. Lee, Roseburg, argued the cause for respondent Brett Allen Morgan. With him on the brief was Lee & Kaser, P.C.
Sally L. Avera, Public Defender, and Jesse Wm. Barton, Deputy Public Defender, filed the brief for respondent Angela Middleton.
No appearance for respondent Shane Scott Hall.
Before WARREN, P.J., and EDMONDS and ARMSTRONG, JJ.
Defendants were charged by indictment with one count each of delivery, possession and manufacture of a controlled substance. ORS 475.992. They demurred on the ground that the indictment was not sufficiently definite and certain as required under ORS 132.550(7). 1 The trial court sustained the demurrer, and the state appeals. ORS 138.060(1). We reverse.
Following the execution of a search warrant at a residence, the state submitted evidence to a grand jury, which returned the indictment against defendants on April 30, 1996. The indictment alleged in the language of the statute in three separate counts that defendants committed the offenses 2 and further alleged facts that if proven would only be relevant for sentencing purposes. Defendants 3 demurred:
Defendants argued to the trial court that the indictment was indefinite and uncertain because the police reports described more than one set of facts that occurred between the dates alleged in the indictment. The state responded that, even though the evidence disclosed through discovery could support more than one theory, the only proper ground for sustaining a demurrer under ORS 132.550(7) is that the indictment is indefinite or uncertain on its face. The trial court agreed with defendants.
Generally speaking, an indictment is sufficient if it charges the offense in the language of the statute. State v. Barker, 140 Or.App. 82, 914 P.2d 11, rev. den. 323 Or. 265, 918 P.2d 846 (1996). It is uncontested in this case that each of the three counts of the indictment alleges all of the essential elements of the relevant offense and uses the language of the appropriate subsection of ORS 475.992.
Defendants do not argue that the statutory language defining the offenses is too generic, nor do they identify any particular allegation or statutory phrase 5 appearing on the face of the indictment that they claim to be indefinite or uncertain. 6 Rather their supporting affidavit and arguments focus exclusively on facts that do not appear on the face of the indictment--facts that defendants learned only after the state provided them with discovery. Defendants also argue that because there are three defendants and a multitude of possible factual scenarios as revealed by the discovery materials, the indictment must allege which defendant was identified with which facts. That argument likewise depends on reference to facts that are not on the face of the indictment.
Defendants' arguments are contrary to ORS 135.630; a demurrer cannot be sustained on the basis of facts extrinsic to the indictment. State v. Durant, 122 Or.App. 380, 382, 857 P.2d 891 (1993). Accordingly, the trial court committed error by relying on extrinsic facts in sustaining the demurrer.
Reversed and remanded.
1 ORS 132.550 provides, in part:
2 The indictment alleged, in part:
3 The three defendants were represented by different attorneys. Defendant Morgan filed the demurrer and the others adopted his demurrer and supporting affidavit.
4 Although defendants cited ORS 135.630(6) to the trial court as the basis for their demurrer, that subsection "only sets out language that specifically applies the requirements that an indictment be definite and certain [ORS 135.610(2) ] to other accusatory instruments [i.e., informations and complaints]."...
To continue reading
Request your trial-
Antoine v. Taylor
...under ORS 135.630(2), which, by express reference, requires that the indictment conform to ORS 132.550(7)." State v. Morgan , 151 Or. App. 750, 753 n. 4, 951 P.2d 187 (1997), rev. den. , 327 Or. 82, 961 P.2d 216 (1998) (emphasis omitted). And it has considered the issue when raised through ......
-
Dominguez v. Barr
...Oregon courts allow convictions for both manufacture and delivery arising out of the same conduct. For example, in State v. Morgan , 151 Or.App. 750, 951 P.2d 187 (1997), the Court of Appeals upheld an indictment that charged the defendants with "one count each of delivery, possession and m......
-
State v. Cervantes
...face thereof: "* * * * * "(4) That the facts stated do not constitute an offense[.]" (Emphasis added.) See, e.g., State v. Morgan, 151 Or.App. 750, 755, 951 P.2d 187 (1997), rev. den., 327 Or. 82, 961 P.2d 216 (1998) ("a demurrer cannot be sustained on the basis of facts extrinsic to the in......
-
State v. Kelly
...under ORS 135.630(2), which, by express reference, requires that the indictment conform to ORS 132.550(7).” State v. Morgan, 151 Or.App. 750, 753 n. 4, 951 P.2d 187 (1997), rev. den.,327 Or. 82, 961 P.2d 216 (1998) (emphasis omitted). Under ORS 132.550(7), an indictment must contain a “stat......