State v. Reynolds,

• Decision Date: 14 August 2002
• Citation: 183 Or.App. 245,51 P.3d 684
• Parties: STATE of Oregon, Appellant, v. James Ray REYNOLDS, Respondent.
• Court: Oregon Court of Appeals

51 P.3d 684

183 Or.App. 245

STATE of Oregon, Appellant, v. James Ray REYNOLDS, Respondent.

00-03-32383; A110613

Court of Appeals of Oregon.

Argued and Submitted September 5, 2001.

Decided August 14, 2002.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for appellant. With him on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

John P. Manning, Beaverton, argued the cause and filed the brief, for respondent.

Before LANDAU, Presiding Judge, and BREWER, Judge, and WARREN, Senior Judge.

LANDAU, P.J.

The state appeals a pretrial order allowing a demurrer to an indictment that charged defendant with felony assault in the fourth degree. At issue is whether the indictment impermissibly alleged that defendant previously had been convicted of assaulting the same victim. According to defendant, including that allegation violates a statutory prohibition on mentioning a prior conviction, unless the conviction is a material element of the crime charged. According to the state, the allegation is permissible, because it is a material element of felony assault in the fourth degree. We agree with the state and reverse and remand.

The relevant facts are not in dispute. The indictment charges defendant with two counts of felony assault in the fourth degree:

"Count 1

"Felony Assault in the Fourth Degree

"The said defendant, on or about March 06, 2000, in the County of Multnomah, State of Oregon, did unlawfully and intentionally, knowingly and recklessly cause physical injury to [victim], and the said defendant has previously been convicted of assaulting [victim], contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon.

"Count 2

"Felony Assault in the Fourth Degree

"The said defendant, on or about February 22, 2000, in the County of Multnomah, State of Oregon, did unlawfully and intentionally, knowingly and recklessly cause physical injury to [victim], and the said defendant has previously been convicted of assaulting [victim], contrary to the statutes in such cases made and provided and against the peace and dignity of the State of Oregon."

Defendant filed a demurrer to the indictment, arguing that both counts are legally defective in that they violate ORS 132.540(2), which provides:

"The indictment shall not contain allegations that the defendant has previously been convicted of the violation of any statute which may subject the defendant to enhanced penalties, except where the conviction constitutes a material element of the crime charged."

Defendant argued that the allegation that he previously had been convicted of assaulting the victim is not a "material element" of the crime charged, but, instead, is merely a sentencing enhancement factor.

The state argued that, under ORS 163.160, the prior conviction is a "material element" of fourth-degree assault. That statute provides, in part:

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

"(a) Intentionally, knowingly or recklessly causes physical injury to another[.]

"* * * * *

"(2) Assault in the fourth degree is a Class A misdemeanor.

"(3) Notwithstanding subsection (2) of this section, assault in the fourth degree is a Class C felony if the person commits the crime of assault in the fourth degree and:

"(a) The person has previously been convicted of assaulting the same victim;

"(b) The person has previously been convicted at least three times under this section or under equivalent laws of another jurisdiction and all of the assaults involved domestic violence * * *; or

"(c) The assault is committed in the immediate presence of, or is witnessed by, the person's or the victim's minor child or stepchild or a minor child residing within the household of the person or victim."

(Emphasis added.) The state argued that, if it does not prove the prior convictions, it will have failed to prove that defendant committed felony assault in the fourth degree. Therefore, the state argued, the allegations are material and not subject to the prohibition of ORS 132.540.

The trial court concluded that defendant was correct in asserting that the existence of a prior conviction is not a material element of the offenses charged and dismissed the indictments.

On appeal, the state reiterates its contention that the allegations concerning defendant's prior conviction is a material element to the crimes charged. Defendant likewise reiterates the position that he advanced at trial. We are thus required to address two issues, namely, what the statute means by "material element" and what is the crime charged.

We begin with the meaning of "material element" as the term is used in ORS 132.540(2). An "element" generally refers to "one of the constituent parts, principles, materials or traits of anything." Webster's Third New Int'l Dictionary, 734 (unabridged ed. 1993). In the criminal law, it commonly—and somewhat more narrowly—refers to "those constituent parts of a crime which must be proved by the prosecution to sustain a conviction." Black's Law Dictionary, 467 (5th ed. 1979). Something is "material" if it is "of real importance or great consequence * * * essential * * * relevant, pertinent." Webster's at 1392. In the law, the term — again somewhat more narrowly — describes allegations that are "essential to the claim or defense, and which could not be stricken from the pleading without leaving it insufficient." Black's at 880.

In a sense, the term "material element" in its legal usage is something of a redundancy. If an allegation is truly an "element" of a crime, by definition, it is "material." But the point of the legislature's use of the term seems clear enough: A "material element" is one that the state must prove to establish the crime charged.

That is the way that the courts of this state have construed the term in other contexts. In State v. Russell, 231 Or. 317, 319, 372 P.2d 770 (1962), for example, the court explained that whether an element in an indictment "is material depends upon whether the word can be struck from the indictment without rendering the pleading vulnerable to demurrer on the ground that it no longer states a crime." Similarly, in State v. Newman, 179 Or.App. 1, 39 P.3d 874 (2002), we addressed the question whether a variance between an allegation and the proof at trial is "material." We explained that the answer depends, in part, on whether the variance concerns a "material element of the crime." Id. at 7, 39 P.3d 874. Citing Russell and 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), we said that whether an element is material depends on whether it may be struck from the indictment without rendering it subject to demurrer. Id. at 7 n. 6, 8-9.

We conclude that a "material element," as that term is used in ORS 132.540(2), refers to an element that is necessary to state the crime charged; if, when the element is struck, the indictment still states the crime charged, then the element is not "material" within the meaning of the statute.

There remains the issue of what is the particular crime charged in this case. According to the state, the crime charged is "felony assault in the fourth degree." According to defendant, the crime charged is "assault in the fourth degree." He argues that the allegation of a previous conviction "typically" affects only the sentence and does not establish a separate crime.

Merely because the fact of a prior conviction "typically" is a sentence enhancement factor and not an element of a separate offense does not mean that such an allegation cannot establish a separate offense. The law, in fact, is to the contrary. In State v. Hoover, 219 Or. 288, 347 P.2d 69 (1959), for example, the defendant was charged with violating ORS 166.270, which makes it unlawful for a person who had been convicted of certain felonies to possess a firearm. The indictment alleged that the defendant had formerly been convicted of automobile theft. The defendant demurred to the indictment, arguing that, under ORS 132.540(2), the allegation was impermissible. Interestingly, the version of ORS 132.540(2) then in effect did not contain the "material element" exception that it now does. The court nevertheless held that the latter statute was never intended to apply when a prior conviction happens to be a material element of the crime. Id. at 311-12, 347 P.2d 69.

More to the issue at hand, in State v. Early, 180 Or.App. 342, 43 P.3d 439, rev. den. 334 Or. 260, 47 P.3d 486 (2002), the defendant was charged with felony driving while suspended or revoked. Driving while suspended or revoked may be a felony or a misdemeanor, depending on whether the suspension or revocation resulted from any of a list of circumstances spelled out in the relevant statute. In that case, the indictment did not specify the circumstances and said only that the defendant "feloniously" drove while his driving privileges were revoked. The defendant argued that the indictment was legally insufficient, because it failed to specify the particular basis of the underlying revocation of his driving privileges. We began by agreeing with the defendant that a fact that...