State v. Wood

• Decision Date: 15 May 1984
• Docket Number: Nos. 10-79-10819 and 10-79-10820,s. 10-79-10819 and 10-79-10820
• Citation: 67 Or.App. 218,678 P.2d 1238
• Parties: STATE of Oregon, Respondent, v. Robert Earl WOOD, Appellant. ; CA A20215 & A20216.
• Court: Oregon Court of Appeals

Page 1238

678 P.2d 1238

67 Or.App. 218

STATE of Oregon, Respondent, v. Robert Earl WOOD, Appellant.

Nos. 10-79-10819 and 10-79-10820; CA A20215 & A20216.

Court of Appeals of Oregon.

Argued and Submitted May 17, 1982.

Decided March 7, 1984.

Reconsideration Denied April 20, 1984.

Review Denied May 15, 1984.

Donald D. Diment, Jr., Eugene, argued the cause for appellant. With him on the briefs were Jack A. Billings, and Diment & Billings, Eugene.

F. Douglas Harcleroad, Asst. Dist. Atty., Eugene, argued the cause for respondent. With him on the brief were J. Pat Horton, Dist. Atty., and Joseph M. Kosydar, Asst. Dist. Atty., Eugene.

Before GILLETTE, P.J., and WARDEN and YOUNG, JJ.

WARDEN, Judge.

Defendant appeals his convictions after trial to the court for first-degree official misconduct and first-degree perjury. He assigns seven errors. The first two concern challenges to the grand jury indictments. Assignments three, four and five concern nondisclosure of grand jury transcripts. Assignment six concerns admissibility of testimony of a witness about one end of a telephone conversation. In assignment seven, defendant challenges the materiality of his allegedly perjured testimony. We reverse on the issue of nondisclosure of grand jury transcripts and remand for a new trial. We discuss the other assignments only because the issues may arise on retrial.

In 1978, Al Phelps owned the Willamette Christian Center property (WCC property) adjacent to the Lane County Fairgrounds. Lane County wanted to acquire the property. In March or April, Phelps approached the county. The then Lane County Commissioners, defendant, Gerald Rust and Archie Weinstein, expressed interest. Darrell Adkison, County Property supervisor, suggested trading surplus property. Defendant was authorized to negotiate for the county. Lane County appraised the WCC property at $961,000 and selected two parcels of surplus county land, appraised by Thomas Morgan of the county Real Estate Division, for trade. The parcels were known as the County Farm property, valued at $596,160, and the 30th Avenue property, valued at $365,700. It is the 30th Avenue property that is at the heart of this dispute. In June, 1978, Lane County made a formal offer to Phelps to exchange properties.

Also in June, Phelps tried to sell the 30th Avenue property. He met with his broker, Leona Smith, Robert Wang, the eventual buyer, and Wang's broker, Mark Beeman. By month's end Wang had agreed to purchase the 30th Avenue property from Phelps for $800,000. At trial Smith testified that she was pressured by Beeman and Wang to produce some documentation that Phelps possessed a saleable interest in the 30th Avenue property. In response Phelps placed a telephone call, purportedly to defendant, during which Phelps told defendant that he had a buyer offering $800,000 for the property and needed documentation of his interest.

The county's offer to Phelps was mailed in early July, and Phelps' attorney accepted the offer. It was also in July that Michael Safley, a local real estate broker, became involved. He found a purchaser for the County Farm property and eventually became Phelps' partner. Safley had contributed to defendant's political campaigns and had had numerous contacts with defendant while the county's deal with Phelps was pending; in January, 1979, at the end of his term as County Commissioner, defendant went to work for Safley.

In late August the Lane County Board and Phelps executed the property exchange agreements. On August 15, the county transferred the 30th Avenue property to Phelps, who then transferred the WCC property to the county. On August 23, the county transferred the County Farm property to Phelps.

Between August 11 and August 15, Beeman received a preliminary title report, dated August 11, 1978, that showed that the 30th Avenue property was actually two parcels separated by a strip that the county would retain, rather than one continuous parcel as originally believed. Wang was dissatisfied, because the strip created difficulty with future access. That led to the issuance of a county facility permit to provide access to the property. Defendant was present when the permit was issued.

Still dissatisfied with the status of access, Wang and Laird, Wang's attorney, and Beeman met with defendant at his office on August 17, 1978. They discussed the county's future plans for developing an interchange that would provide access to the property. Other ways of access were also discussed. Defendant stated positively that access would be available to the property by way of future construction of an overpass exchange. Defendant made a telephone call to a county employe to inquire about dedication of a portion of the county property to provide access to the 30th Avenue property, should Wang purchase it from Phelps. At trial Beeman testified that defendant was informed at that meeting that the purchase price was $800,000. Wang then closed the transaction for the purchase of the 30th Avenue property late in the afternoon of August 17 by paying the balance of the $800,000.

The mention of the $800,000 purchase price for the property at the August 17 meeting in defendant's office was corroborated by Wang and his attorney. Evidence of defendant's knowledge of it came from several other sources. There was also evidence that he had also received the information on August 11, 1978. Areta Schultz, defendant's aide, testified that she was present at a luncheon on that date, when defendant commented on the $800,000 purchase price. Defendant and others present at that conversation denied that there was any mention of the price.

A grand jury investigated to determine what, if any, wrongdoing might have occurred during the transaction. Before the grand jury and at trial, defendant denied knowing of the $800,000 purchase price before August 17, 1978. He also denied portions of the conversations related by witnesses to his August 17 meeting with Wang, Wang's attorney and Beeman.

Throughout the course of the transactions, defendant made no disclosures to the other Commissioners of any relationship or knowledge that he may have had regarding the Phelps/Safley-Wang transaction. The other two Commissioners testified that, had they known of some or all of the facts, they might have changed their position regarding the property exchange.

Defendant interposed successive demurrers to the indictment charging official misconduct on grounds that the indictment fails to state facts sufficient to constitute an offense, ORS 135.630(4), that it is not definite and certain, ORS 135.630(6), and that the statute is vague. After being sentenced, he moved for arrest of judgment on the ground that the facts alleged in the indictment do not constitute an offense. ORS 136.500. He assigns error to the denial of both demurrers and the motion.

ORS 162.415(1)(a) provides:

"A public servant commits the crime of official misconduct in the first degree if with intent to obtain a benefit or to harm another:

"He knowingly fails to perform a duty imposed upon him by law or one clearly inherent in the nature of his office * * *."

The indictment charged the crime of official misconduct in the first degree:

"The defendant on or between the 25th day of April, 1978, and the 31st day of December, 1978, in the County aforesaid, being a Lane County Commissioner, a public servant, and with intent to obtain a benefit, did unlawfully and knowingly fail to perform duties imposed upon him by Oregon Revised Statutes 244.040(1)(2)(3), a statute relating to his office, other duties imposed by law and ones clearly inherent in the nature of his office, including the duty of good faith, the duty of honesty, the duty of loyalty to the public and his employer, Lane County, by knowingly failing to disclose information to other members of the Board of Lane County Commissioners which could have affected a certain property transaction engaged in by Lane County, Oregon, Al Phelps, Michael Safley, and others; contrary to statute and against the peace and dignity of the State of Oregon."

In general, an indictment in the language of a statute is sufficient. State v. Nussbaum, 261 Or. 87, 491 P.2d 1013 (1972); State v. Hatley, 48 Or.App. 541, 617 P.2d 902, rev. den. 290 Or. 171 (1980). This indictment was more specific than the law requires and provided sufficient notice, particularly where, as here, the defendant was provided substantial discovery, see State v. Keys, 25 Or.App. 15, 21-22, 548 P.2d 205, rev. den. (1976), and the trial court required the state to file a statement listing the information defendant allegedly failed to disclose and the ways the failure to disclose information would or could have affected the property exchange.

Defendant challenges ORS 162.415(1)(a), under which he was charged, on the ground of vagueness. Defendant contends that it is vague because it provides inadequate notice and contains inadequate standards for enforcement or for adjudication. We disagree.

The Delaware Superior Court has considered a similar challenge to a statute substantively identical to ORS 162.415(1)(a). The Delaware statute provided in pertinent part:

"A public servant is guilty of official misconduct when, intending to obtain a personal benefit or to cause harm to another person:

" * * *

"(2) He knowingly refrains from performing a duty which is imposed upon him by law or is clearly inherent in the nature of his office * * *." Del Code tit 11, § 1211(2).

The Delaware court analyzed the statute for vagueness and, emphasizing the statutory requirement of a knowing violation of duty, found it sufficient to withstand the challenge. State v. Green, 376 A.2d 424 (Del.Super.Ct.1977); see Howell v. State, 421 A.2d 892 (Del.1980). The Delaware court's conclusion is consistent with the Commentary to the Proposed Oregon Criminal Code § 215 (enacted as ORS 162.415). ¹ We conclude that the statute is not "so vague that men of...