State v. Wright

• Decision Date: 17 May 2000
• Citation: 167 Or. App. 297,999 P.2d 1220
• Parties: STATE of Oregon, Appellant, v. Keith Dee WRIGHT, Respondent.
• Court: Oregon Court of Appeals

999 P.2d 1220

167 Or. App. 297

STATE of Oregon, Appellant, v. Keith Dee WRIGHT, Respondent.

(99-1018; CA A106682)

Court of Appeals of Oregon.

Argued and Submitted March 14, 2000.

Decided May 17, 2000.

Ann Kelley, Assistant Attorney General, argued the cause for appellant. With her on the brief were Hardy Myers, Attorney General, and Michael D. Reynolds, Solicitor General.

Elizabeth A. Baldwin, Astoria, argued the cause and filed the brief for respondent.

Before De MUNIZ, Presiding Judge, and HASELTON and WOLLHEIM, Judges.

HASELTON, J.

The state appeals from an order sustaining a demurrer to an indictment as being insufficiently definite and certain. ORS 135.630(2); ORS 132.550(7).¹ We conclude that order is appealable under ORS 138.060(1), and reverse.

Defendant was charged by a six-count indictment, which alleged as pertinent:

"COUNT 3

"ASSAULT IN THE FOURTH DEGREE

"ORS 163.160

"Class C Felony

"The said, KEITH DEE WRIGHT, on or about the 12th day of January, 1999, in Clatsop County, State of Oregon, did unlawfully and recklessly cause physical injury to Lisa M. Rosgo, and the defendant's conduct was witnessed by Shailei M. Wright, the minor child of Lisa Rosgo;

"COUNT 4

"RECKLESSLY ENDANGERING ANOTHER PERSON

"ORS 163.195

"Class C Misdemeanor

"The said, KEITH DEE WRIGHT, on or about the 12th day of January, 1999, in Clatsop County, State of Oregon, did unlawfully and recklessly create a substantial risk of serious physical injury to Shailei M. Wright;

"COUNT 5

"MENACING

"ORS 163.190

"Class A Misdemeanor

"The said, KEITH DEE WRIGHT, on or about the 12th day of January, 1999, in Clatsop County, State of Oregon, did unlawfully and intentionally attempt to place Lisa M. Rosgo in fear of imminent serious physical injury."

Defendant demurrered to those counts on two alternative grounds. First, defendant asserted that "the facts stated do not constitute an offense," ORS 135.630(4), because they did not allege "any acts on the part of the defendant." Second, defendant asserted that those counts were not definite and certain in that they failed to set out "the acts constituting the offense in ordinary and concise language." ORS 132.550(7). See ORS 135.630(2). The state responded that the challenged counts were sufficient in both respects in that they pleaded the offenses in the language of the underlying statutes and that, to the extent that the indictment did not describe defendant's conduct with particularity, that was a matter properly addressed through pretrial discovery. The state particularly invoked our holdings in State v. Strandquist, 57 Or.App. 404, 644 P.2d 658, rev. den. 293 Or. 483, 650 P.2d 928 (1982), and State v. Caffee, 116 Or.App. 23, 840 P.2d 720 (1992), rev. den. 315 Or. 312, 846 P.2d 1161 (1993).

The trial court denied defendant's demurrer that counts 3, 4, and 5 failed to allege the essential elements of the offenses. However, the court allowed defendant's demurrer that those counts were not sufficiently definite and certain:

"ORS 132.550(7) requires that an indictment contain a statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended. Article I, section 11 of the Oregon Constitution gives the defendant the right to demand the nature and cause of the accusation against him. Defendant demurred to the indictment in a timely manner and asked for specificity with regards to Counts 3, 4 and 5.

"The state used to plead conduct in assault cases but no longer does so. It has not shown that it would be prejudiced by specifying the conduct of the defendant that caused the results alleged other than its claim that it might allege one act but prove something else. However, without specificity, the defendant may prepare a defense for one act and find out at trial that the state will prove something else.

"In balancing the rights of the defendant with the imposition on the state, I conclude that it is reasonable for the state to allege the acts that caused the results in Counts 3, 4 and 5. Motion one is allowed. The state may replead Counts 3, 4 and 5."

The court then entered an "Order on Defendant's Demurrer," allowing the demurrer and granting the state leave to resubmit the case to the grand jury. The state opted not to resubmit to the grand jury, and appeals from that order.

At the outset, we must address a jurisdictional issue. Defendant contends that the state cannot appeal from a pretrial order sustaining a demurrer under ORS 135.630(2)—and, particularly, that such an appeal is not authorized by ORS 138.060(1). We disagree. See State v. Robertson, 293 Or. 402, 404-07, 649 P.2d 569 (1982).

ORS 138.060(1) provides that the state may appeal "[a]n order made prior to trial dismissing or setting aside the accusatory instrument." In Robertson, the court considered the scope of that provision and, particularly, whether it encompassed "`orders' sustaining demurrers whether or not they are identified as judgments, as prescribed in ORS 135.660."²293 Or. at 407,649 P.2d 569. The court canvassed the evolution of the statute, id. at 406-07, 649 P.2d 569, and concluded that, based on the legislative history, ORS 135.660(1) was not limited "literally" to appeals of orders of dismissal under ORS 135.470³ and orders setting aside indictments under ORS 135.510.⁴ Rather, the statute was intended to broadly encompass orders sustaining demurrers that formerly would not have been reviewable in the absence of a subsequent judgment of dismissal. 293 Or. at 406-07,649 P.2d 569 (noting that the legislation was intended, inter alia, to supersede the "rule" of State v. Cloran, 233 Or. 400, 404, 374 P.2d 748 (1962), and related cases that an order sustaining a demurrer was not final and, hence, not appealable).

Thus, the court concluded that "because the purpose of the [statutory] amendments was to broaden the state's ability to appeal orders that invalidate accusatory instruments, the court may take jurisdiction of such appeals from `orders' sustaining demurrers whether or not they are identified as judgments, as prescribed in ORS 135.660." 293 Or. at 407, 649 P.2d 569.

Under the rule of prior construction, see Stephens v. Bohlman, 314 Or. 344, 350 n. 6, 838 P.2d 600 (1992), that holding is incorporated into the statute. See also State v. Parker, 299 Or. 534, 538-39, 704 P.2d 1144 (1985) (order sustaining demurrer to one count of multiple-count indictment is appealable) (applying Robertson).

Defendant argues, nevertheless, that Robertson is not dispositive because the demurrer there was based on ORS 135.630(4) and, particularly, asserted that the indictment did not allege a crime because the underlying coercion statute was unconstitutionally vague. Defendant's argument, as we understand it, is that Robertson's jurisdictional holding goes only to orders sustaining demurrers under subsection (4), and not to ORS 135.630 generally. Nothing in Robertson suggests such a limitation.⁵ To the contrary, Robertson's holding is unqualified. Accordingly, the trial court's order sustaining the demurrer under ORS 135.630(2) is appealable.

Turning to the merits, ORS 135.630 provides, in part:

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

"* * * * *

"(2) If the accusatory instrument is an indictment, that it does not substantially conform to the requirements of ORS 132.510 to 132.560 * * *;

"* * * * *

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

ORS 132.550 provides, in part:

"The indictment shall contain substantially the following:

"* * * * *

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

The state argues, as it did to the trial court, that the indictment was sufficiently definite and certain. The state invokes the well-established principle that, in general, "an indictment in the language of [the] statute" is sufficient to withstand a demurrer. E.g., State v. Nussbaum, 261 Or. 87, 91, 491 P.2d 1013 (1971); State v. Bockorny, 125 Or.App. 479, 483, 866 P.2d 1230 (1993),on recons. 126 Or.App. 504, 869 P.2d 349, rev. den. 319 Or. 150, 877 P.2d 87 (1994). Indeed, the state asserts, there is no case in which an indictment alleged in the language of the underlying statute has been deemed insufficient under ORS 135.630(4) as failing to state facts sufficient to constitute an offense.

Defendant responds that "sufficiency" under subsection (4) and "definiteness and certainty" under subsection (2) and ORS 132.550(7) are distinct concepts and distinct requirements—generally analogous in the civil context to the bases for a motion to dismiss for "failure to state ultimate facts sufficient to constitute a claim," ORCP 21 A(8), and a motion to make more definite and certain under ORCP 21 D. Thus, defendant reasons, an indictment's "sufficiency" for purposes of subsection (4) does not determine whether it is adequately definite and certain to withstand a demurrer under subsection (2). Rather, defendant asserts, the analysis under subsection (2) and ORS 132.550(7) is more specific and rigorous, see, e.g., State v. Sanders, 280 Or. 685, 572 P.2d 1307 (1977), and, under Sanders and related cases, the three challenged counts here are fatally inadequate because they fail to allege defendant's conduct with specificity.⁶ As amplified below, we agree with defendant and the trial court that an indictment that satisfies subsection (4) may nevertheless be inadequate under subsection (2) and ORS 132.550(7). However, we conclude that the three challenged counts here were, in fact, sufficiently definite and certain to withstand demurrer under subsection (2) and ORS 132.550(7). See, e.g., Caffee, 116 Or.App. 23, 840 P.2d 720; Strandquist, 57 Or.App. 404, 644 P.2d 658; State v....