State v. Newman

• Decision Date: 23 January 2002
• Parties: STATE of Oregon, Respondent, v. Delbert Baldwin NEWMAN, Appellant.
• Court: Oregon Court of Appeals

39 P.3d 874

179 Or. App. 1

STATE of Oregon, Respondent, v. Delbert Baldwin NEWMAN, Appellant.

98CR0803MA; A104773

Court of Appeals of Oregon.

Argued and Submitted January 31, 2001.

Decided January 23, 2002.

Robin A. Jones, Deputy Public Defender, argued the cause for appellant. With her on the brief was David E. Groom, Public Defender.

Brendan C. Dunn, 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 HASELTON, Presiding Judge, and DEITS, Chief Judge,¹ and WOLLHEIM, Judge.

DEITS, C.J.

Defendant appeals from a judgment of conviction for one count of felony driving while suspended or revoked.² ORS 811.175 (1997); ORS 811.182 (1997). We write only to address defendant's assignment of error that the trial court erred in denying his motion for judgment of acquittal.³ We reverse.

The indictment charged, in pertinent part, that defendant "on or about the 15th day of June 1998, in Deschutes County, Oregon, did unlawfully and feloniously drive a motor vehicle upon premises open to the public * * * during a period when the defendant's driving privileges were suspended by the DEPARTMENT OF MOTOR VEHICLES[.]"⁴ However, at trial, the state produced evidence that a district court had suspended defendant's driving privileges. Specifically, the state produced a copy of a DMV form entitled "NOTICE OF SUSPENSION OR REVOCATION." (Boldface in original.) The form states that it "is to serve as a suspension/revocation notice to the defendant" and that the District Court of Deschutes County had imposed a suspension against defendant's driving privileges from November 24, 1997, to November 23, 1998. The form also states that it is the only notice that defendant will receive and that the "action imposed by the court will be entered on [defendant's] record by Driver and Motor Vehicle Services." (Boldface in original.) Defendant's signature is on the form, and he testified that he received a copy of it.

At trial, defendant cited State v. Long, 320 Or. 361, 885 P.2d 696 (1994),cert. den. 514 U.S. 1087, 115 S.Ct. 1803, 131 L.Ed.2d 729 (1995), and State v. Russell, 231 Or. 317, 372 P.2d 770 (1962). He argued that the variance between the allegation that he was suspended by DMV and the proof that he was suspended by a court was material and that he had a right under Article VII (Amended), section 5(3), of the Oregon Constitution, "to be tried only for the specific criminal act as to which the grand jury handed down the indictment."⁵ Defendant concluded that "[w]e're here defending this case because we believe that the * * * district attorney could not prove in court the allegations that it made." The state countered that, under ORS 811.175 (1997), "you can plead in the alternative by the court or by the Department of Transportation, it can be either one, but it is not a material element to the crime. The defendant has to be put on notice of the elements that constitute the criminal act. Who suspends does not constitute an element of the criminal act. What constitutes an element of [the] criminal act is after notice, that the defendant drives.

"For those reasons, we do not feel that it is a material element and that the variance does not rise to the level upon which * * * the defendant cannot be prosecuted in this proceeding. He has received notice from the discovery which has been provided to him in a timely matter prior to trial. The allegation is clearly that the defendant drove after being notified that he was prohibited from doing so."

The trial court reasoned:

"The standard that I'm finding is the one [defense counsel] referenced about whether or not language can be stricken from the indictment without that indictment then becoming vulnerable to a demur[rer] for failure to state an element of [the] crime. I'm finding that[,] even if that portion was stricken from the indictment as to which agency, whether court or an administrative agency issued the suspension, I don't find that to be a material element of the crime. I think if that was deleted, that would not subject the indictment * * * to a successful demur[rer].

"I come to that conclusion based on a reading of the statute itself of the crime, [ORS] 811.182 [ (1997) ], and the fact that it's set forth in the alternative. Also, and taking into account the fact that this [is] a DMV form that was used, even though it indicates action imposed by the court, it also indicates this is the only notice of suspension or revocation that you will receive.

"* * * * *

"[Defense counsel], you may assume that you've properly raised this issue for purposes of a directed verdict at the close of the State's case, and at [the] close of the defense's case, if you wish to make reference to it at that time, you certainly can, but I think we've adequately covered it."

On appeal, the parties frame the issue as whether, under the analysis in State v. Wimber, 315 Or. 103, 843 P.2d 424 (1992), the trial court impermissibly amended the substance of the indictment in violation of Article VII (Amended), section 5, of the Oregon Constitution. However, as noted above, there was no formal request to amend the indictment in this case. Thus, we understand the dispositive legal issue on appeal to be whether there was a material variance between the allegations in the indictment and the proof at trial. The Supreme Court's opinion in Long illustrates the appropriate method for analyzing that legal issue. As in this case, the parties in Long framed the issue as one involving the propriety of an amendment to an indictment even though no amendment had been requested.

In Long, the grand jury indicted the defendant for sodomy, and the indictment alleged that the crime occurred during a particular period of time. Thereafter, the state notified defense counsel that the dates in the indictment were incorrect due to a typographical error and that, at trial, it would prove the proper date, which was outside the time period alleged in the indictment. The "[d]efendant acknowledge[d] that he knew before trial that the state intended to present evidence at trial that the crime was committed on April 22, 1984." Long, 320 Or. at 364, 885 P.2d 696. Additionally, the record indicated that "the district attorney never formally moved to amend the indictment." Id. At trial, the defendant moved for a judgment of acquittal on the ground that the state had presented no evidence that the crime had been committed during the time period alleged in the indictment. The defendant also relied on Article VII (Amended), section 5(3), of the Oregon Constitution. The trial court denied the defendant's motion because time was not a material element of the crime of sodomy in that case and the defendant had suffered no actual prejudice as a result of the variance. The defendant was convicted, and he appealed.

On appeal, the defendant argued 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), [of the Oregon Constitution,] because it was an amendment of the substance of the indictment and not an amendment as to form.'" Long, 320 Or. at 366,885 P.2d 696.

According to the Supreme Court in Long, we relied on Wimber and held that the amendment concerned a defect in form and did not alter the substance of the grand jury's decision. Long, 320 Or. at 367, 885 P.2d 696.

On review to the Supreme Court, the defendant in Long argued that we improperly applied Wimber. The Supreme Court explained the gravamen of Wimber's four-part test:

"[T]his court recognized that, under Article VII (Amended), section 5, of the Oregon Constitution, a trial court may amend a defect in form, but may not amend a defect in substance. Matters of form are matters that are not essential to the charge and are merely clerical matters, such as matters as to which the defendant cannot be misled to his or her prejudice by the amendment. A matter that is essential to show that an offense has been committed is a matter of substance." Long, 320 Or. at 367 n. 9, 885 P.2d 696 (emphasis added; citations omitted).

The court then reasoned that, although the "defendant mount[ed] his argument in constitutional terms" and we had "responded in kind[,] * * * most of the answer to defendant's argument in this case lies outside the state and federal constitutions." Id. at 367, 885 P.2d 696. Relying on State v. Howard, 214 Or. 611, 331 P.2d 1116 (1958), the court explained the appropriate method of analysis for determining whether a variance between an allegation and the proof at trial is material.⁶ First, a court examines whether the variance between an allegation and proof concerns an allegation of a material element of the crime. Long, 320 Or. at 368, 369, 885 P.2d 696.⁷ Second, if the allegation does not concern a material element of the crime, the court determines whether "on the facts of the particular case, the defendant had suffered prejudice to his defense by" the variance between the allegation and the proof. Id.⁸

Thus, in Long, the Supreme Court held that the "defendant's motion for judgment of acquittal was without merit, and the trial court correctly denied it." 320 Or. at 369,885 P.2d 696. The court reasoned that time was not a material element of the crime of sodomy in that case because, "as the state correctly argue[d] * * *, the indictment would have been sufficient had it alleged only the elements of the offense, the age of the victim, and that defendant had committed the act within three years of the filing of the indictment—i.e., within the period provided by the applicable statute of limitation." Id. The court also reasoned that the defendant was not prejudiced by the...