State v. Wilcox

• Decision Date: 08 January 1992
• Citation: 110 Or.App. 490,823 P.2d 1009
• Parties: STATE of Oregon, Respondent, v. Richard Shawn WILCOX, Appellant. 9002-0374; CA A65285.
• Court: Oregon Court of Appeals

Page 1009

823 P.2d 1009

110 Or.App. 490

STATE of Oregon, Respondent, v. Richard Shawn WILCOX, Appellant.

9002-0374; CA A65285.

Court of Appeals of Oregon.

Argued and Submitted Aug. 30, 1991.

Decided Jan. 8, 1992.

Irene B. Taylor, Salem, argued the cause, for appellant. With her on the brief was Sally L. Avera, Public Defender, Salem.

Thomas Denney, Asst. Atty. Gen., Salem, argued the cause, for respondent. With him on the brief were Dave Frohnmayer, Atty. Gen., and Virginia L. Linder, Sol. Gen., Salem.

Before BUTTLER, P.J., and ROSSMAN and DeMUNIZ, JJ.

ROSSMAN, Judge.

Defendant appeals his conviction for first degree theft. ORS 164.055(1)(a). The issue is whether the trial court erred in amending the indictment to conform to proof presented at trial. We reverse.

The indictment reads:

"Theft in the First Degree, committed as follows:

"The said defendant(s) did, in Linn County, State of Oregon, on or about September 5, 1989, unlawfully and knowingly commit theft of money, of the value of five hundred dollars or more, the property of Pacific First Bank, Albany Branch, Albany, Oregon, contrary to the Statutes in such cases made and provided and against the peace and dignity of the State of Oregon." (Emphasis supplied.)

At the start of the trial, the district attorney, defense counsel and judge engaged in a discussion:

The Court: "Mr. Eder, was there a matter you wanted to bring up before the jury entered?"

District Attorney: "Yes, Your Honor. It has to do with the specific allegations of the indictment and the theory under which the State is going to be asking the Court to submit the matter to the jury. As the court can see from the indictment[,] it alleges theft of money and it alleges it's the property of Pacific First Bank, Albany Branch. The evidence that will be presented from the witnesses will show that a check belonging to the person named Marcia Coats was taken by [defendant] after it had been counter signed by Mrs. Coats and lost. It was taken by a person and [defendant] took it into the Albany Branch, took it into the Corvallis Branch actually of Pacific First Bank and deposited it in his account and then came over to the Albany Branch and took money out of his account drawing on the force of that check.

"It has been alleged that the property is the property of Pacific First Bank. The State will ask the Court to submit the case under the theory that the property of five hundred dollars or more was actually the property of Marcia Coats. In that respect I think that the evidence will not support a conclusion by the jury that the property belonged to Pacific First Bank, but I think the evidence will support the conclusion that the property did belong to Marcia Coats and that the defendant appropriated the property of Marcia Coats and it was more than five hundred dollars." (Emphasis supplied.)

Defense counsel responded:

"We would object to any amendment at this time, Your Honor. This case was submitted to the Grand Jury, witnesses were called, it was fully investigated by the police and I think all the facts were known to the District Attorney at the time it was presented to the Grand Jury and they chose the wording of the indictment at that time. To come here on the morning of trial and ask the Court to essentially amend the indictment, to change its theory, I think I believe would be inappropriate and therefore we would strongly object." (Emphasis supplied.)

The state continued:

"Let me be clear on what I am asking the Court, Your Honor. Mr. Hickam has known of these facts since the first time discovery was presented and he is quite right, the facts were presented to the best that I know to the Grand Jury. * * * I think that at the conclusion of the evidence it may well be proper for the Court to conclude that there is not evidence that the property appropriated was the property of Pacific First Bank and so in that sense it might well be proper for the Court to conclude that a judgment of acquittal on the charge in the indictment would be correct. I will leave that to how the evidence comes in, but I believe that that is likely to be the case. However, I will be asking the Court even if the Court would grant a judgment of acquittal on the indictment as stated, to submit the case nonetheless on another theory of theft, which was fully disclosed to the defendant, no surprise to the defendant, still states the charge fully and still were within the facts that were entirely disclosed and he has had an opportunity to prepare for and still fully supports the charge of Theft in the First Degree." (Emphasis supplied.)

The evidence at trial showed that, on September 5, 1989, defendant negotiated a $2,550 check that belonged to an individual named Coats, who testified that, on that date, she had received the check from an investment company, had endorsed it and had lost it en route to her bank. A bank official testified that, later that day, defendant had placed his endorsement on Coats' check, had deposited it into his bank account and had withdrawn a total of $2,300 in cash from the Corvallis and Albany branches of his bank.

Over defendant's objection, the trial court instructed the jury that it could convict defendant of theft of a check from Coats:

"Now, in this case, the defendant has been accused of the crime of Theft in the First Degree. The charging portion of the indictment reads as follows:

" 'That the above-named defendant is accused by this indictment of the offense of Theft in the First Degree, committed as follows: The said defendant did, in Linn County, State of Oregon, on or about September 5, 1989, unlawfully and knowingly commit theft of--' and I have allowed an amendment of the indictment so it no longer reads, "property of Pacific First Bank" as I read to you earlier--'alleged to have committed theft of the following property the check from John Hancock Clearing Corporation to Marcia Coats, dated August 28, 1989, from the owner Marcia Coats and the check having the value of more than $500.' "

Defendant argues that that instruction impermissibly amended the substance of the indictment.

We begin by noting that this case does not concern the sufficiency of the charging instrument. It is undisputed that the indictment alleged all of the elements of the crime of theft and contained the language required by statute. The issue is whether the trial court's amendment ¹ of the indictment constituted a permissible change in its form or an impermissible change in its substance. If an amendment to an indictment is needed to correct a defect of substance, then the state is required to resubmit the indictment to the grand jury. Or. Const., Art VII (amended), § 5(6); ² State v. Green, 44 Or.App. 253, 258, 605 P.2d 746 (1980).

An indictment that alleges theft of money is not at variance with evidence of the negotiation of a check. State v. Cottrill, 29 Or.App. 425, 563 P.2d 1236 (1977). Therefore, the only question is whether the substitution of "Ms. Coats" for "Pacific First Bank" constituted a change in the substance of the indictment. The state...