State v. Wimber

• Citation: 843 P.2d 424,315 Or. 103
• Parties: STATE of Oregon, Respondent on Review, v. Larry Floyd WIMBER, Petitioner on Review. CC C90-01-30494; CA A66481; SC S38863.
• Decision Date: 24 December 1992
• Court: Oregon Supreme Court

Page 424

843 P.2d 424

315 Or. 103

STATE of Oregon, Respondent on Review, v. Larry Floyd WIMBER, Petitioner on Review.

CC C90-01-30494; CA A66481; SC S38863.

Supreme Court of Oregon.

Argued and Submitted Sept. 4, 1992.

Decided Dec. 24, 1992.

Wayne Mackeson, of Des Connall, P.C., Portland, 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.

Before CARSON, C.J., and PETERSON, VAN HOOMISSEN, FADELEY, UNIS and GRABER, JJ.

GRABER, Justice.

This case involves the interpretation and application of statutes relating to demurrers to criminal indictments. On January 25, 1990, defendant was charged in a twelve-count indictment with three counts of sodomy in the first degree, ORS 163.405 ¹ (counts 1, 2, and 3), three counts of rape in the first degree, ORS 163.375 ² (counts 4, 5, and 6), and six counts of sexual abuse in the first degree, ORS 163.425 (1987) ³ (counts 7 through 12). According to the indictment, all the crimes occurred between January 25, 1984, and November 27, 1989.

At the beginning of trial, defendant demurred to the indictment. ORS 135.630 provides in part:

"The defendant may demur to the accusatory instrument when it appears upon the face thereof:

" * * * * *

"(4) That the facts stated do not constitute an offense; [or]

"(5) That the accusatory instrument contains matter which, if true, would constitute a legal justification or excuse of the offense charged or other legal bar to the action[.]"

The demurrer was based on defendant's contention that all counts in the indictment alleged conduct taking place outside the applicable statute of limitations. Defendant argued that the statute of limitations was three years, rather than six years. ⁴ Relying on ORS 135.640, ⁵ defendant contended that a demurrer on the ground that the facts stated did not constitute a crime, ORS 135.630(4), can be raised at "any time, even on appeal."

The state responded that the demurrer was untimely, because a demurrer alleging the failure of an indictment to charge offenses committed within the statute of limitations is properly classified as a demurrer on the ground that the indictment is legally barred, ORS 135.630(5). Under ORS 135.610(1), ⁶ a demurrer on that ground must be filed at the arraignment or at some other "allowed" time. ⁷ The state asked that all counts of the indictment be tried, with instructions to the jury to find defendant not guilty of any offenses occurring outside the limitation period.

Instead, before trial began, the trial court amended the indictment so that the dates alleged in counts 10, 11, and 12 (sexual abuse) fell within the limitation period (January 25, 1987, through November 27, 1989). The court also amended the dates alleged in counts 7, 8, and 9 (sexual abuse), so that they fell entirely outside the limitation period (January 25, 1984, through January 24, 1987). ⁸ The court explained that it was not yet convinced of the legal correctness of defendant's statute of limitations argument, but that it intended to reconsider the matter:

"It might be that you persuade me at a later time when you have had more time to brief the matter, when [the prosecutor] has, and I have had time to do my research, I might conclude your legal position is correct.

"If I do, I want to be able to handle the case, and I want to be able to handle any verdict that has come in under the case.

"The only way I can see to do that is to submit counts 10, 11, and 12 under one set of dates, and 1 through 9 under the other set. ⁹ If he gets convictions on 1 through 9, and you're correct, those would be set aside." ¹⁰

At the conclusion of the state's case, defendant moved for "a continuation of the demurrer that was filed." The court replied: "That's been argued. It's preserved. It's denied."

A jury found defendant guilty on count 1 and on counts 4 through 12, but not guilty on counts 2 and 3. ¹¹ After the jury returned its verdicts, defendant renewed his demurrer. The court sustained the demurrer as to count 1 and counts 4 through 9, ordered that the verdicts of guilty thereon be vacated, and dismissed those counts. The court then imposed sentence on counts 10 through 12 and entered judgment.

Defendant appealed, assigning error to the trial court's amendment of the time period alleged in counts 10 through 12 of the indictment and to the trial court's denial of his demurrer to those counts. The Court of Appeals affirmed without opinion. State v. Wimber, 109 Or.App. 703, 820 P.2d 472 (1991). We allowed review to consider whether defendant's demurrer was timely, whether he preserved his objection to the trial court's amendment of the indictment, and whether the trial court erred in amending the indictment and denying the demurrer. ¹²

We begin with the issue whether defendant's demurrer was timely. At trial and on appeal, defendant contended that the demurrer was timely, because it asserted that the facts stated in the indictment did not constitute an offense and could, therefore, be raised at any time. ORS 135.630(4); 135.640.

Defendant misconceives the application of ORS 135.630(4). An indictment fails to state facts constituting an offense when it fails to allege each of the essential elements of the offense. This court stated in State v. Holland, 202 Or. 656, 669, 277 P.2d 386 (1954), that

"[t]he essential requirement of an indictment, if it is to withstand a challenge on the ground that the facts stated do not constitute a crime, is set forth in [ORS 132.550(7) ]. It must contain:

" 'A statement of the acts constituting the offense in ordinary and concise language, without repitition [sic ], and in such manner as to enable a person of common understanding to know what is intended[.]' "

See State v. Wagner, 305 Or. 115, 171-72, 752 P.2d 1136 (1988) (upholding indictment alleging ultimate facts that made up offense); State v. Mims, 235 Or. 540, 543-547, 385 P.2d 1002 (1963) (indictment must allege all elements of statutory offense); State v. Reynolds, 229 Or. 167, 170, 366 P.2d 524 (1961) (indictment is sufficient if it sets forth elements of crime so as to inform defendant adequately of charge to be answered); State v. Goesser, 203 Or. 315, 321-22, 280 P.2d 354 (1955) (indictment must "show on its face" the essential ingredients of the crime charged); State v. Buck, 200 Or. 83, 103, 264 P.2d 1051 (1953) (indictment must charge material parts and necessary ingredients of relevant offense); State v. Smith, 182 Or. 497, 502, 188 P.2d 998 (1948) (one purpose of indictment is to inform accused of nature and character of criminal offense with which accused is charged, with sufficient particularity to enable accused to defend; where statute describes offense in generic terms, statement of particular circumstances may be necessary).

Time is not an essential element of the offenses charged in the indictment at issue here. See ORS 163.405 (setting out elements of offense of sodomy in the first degree); ORS 163.375 (same for rape in the first degree); ORS 163.425 (1987) (same for sexual abuse in the first degree) (text of statutes set out in notes 1, 2, and 3, ante ). See also ORS 132.550(6) ¹³ and ORS 135.717 ¹⁴ (establishing time-related requirements for indictment). Therefore, the indictment was not required to state the precise dates on which the alleged offenses occurred. See State v. Milbradt, 305 Or. 621, 631-32, 756 P.2d 620 (1988) (indictment need not allege the specific time that the offense was committed unless time is a material element of the offense; time is not a material element of rape or sexual abuse); State v. Howard, 214 Or. 611, 615, 331 P.2d 1116 (1958) (time is not a material element of crime of sodomy and need not be alleged with exactitude in indictment); State v. Lee, 202 Or. 592, 603-04, 276 P.2d 946 (1954) (generally, time is not a material element in a criminal offense and need not be specified in indictment, although state must prove that defendant committed the offense within the applicable period of limitation). ¹⁵ Defendant's claim that the dates alleged in the indictment were outside the statute of limitations is not a claim that the facts alleged therein failed to constitute an offense.

Instead, when a demurrer contends that the conduct alleged in the indictment took place outside the applicable period of limitation, the proper ground is stated in ORS 135.630(5): "That the accusatory instrument contains matter which, if true, would constitute a * * * legal bar to the action." Where that ground is invoked, the demurrer must be entered at the time of arraignment or "at such other time as may be allowed to the defendant for that purpose." ORS 135.610(1). Defendant's reliance on ORS 135.630(4) and ORS 135.640 for his claim that he could demur "at any time" is misplaced.

Defendant also argues, however, that the trial court in fact "allowed" him to enter the demurrer at some "other time" than at the arraignment, as permitted by ORS 135.610(1). During defendant's arraignment, his court-appointed counsel, who was not his counsel at trial, said: "As to each indictment we'll proceed as named, waive further reading and advice of rights, request a jury trial, enter a not guilty plea reserving all rights against each indictment and request dates please." (Emphasis added.) The arraignment court did not object to the proposed "reservation." Later, the trial court permitted defendant to file a demurrer at the beginning of trial and to "renew" his demurrer at the conclusion of trial. ¹⁶

This court has not considered in detail what conduct by a trial court is sufficient to show that it "allow[ed]" a defendant to demur at some "other time." ORS 135.610(1). But, in State v. Tucker, 252 Or. 597, 602, 451 P.2d 471 (1969), this court explained:

"The words 'such other time' in ORS 135.610 establish a discretion in the trial court to permit the filing of a demurrer at times other than...