State v. Hansz

5 P.3d 1109, 167 Or. App. 147, 2000 Ore. App. LEXIS 723
CourtCourt of Appeals of Oregon
DecidedMay 3, 2000
DocketC9602-31509; CA A102267
StatusPublished
Cited by1 cases

This text of 5 P.3d 1109 (State v. Hansz) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Hansz, 5 P.3d 1109, 167 Or. App. 147, 2000 Ore. App. LEXIS 723 (Or. Ct. App. 2000).

Opinion

BREWER, J.

Defendant was tried and convicted on stipulated facts for unlawful possession of a Schedule II controlled substance. ORS 475.992(4)(b). In a single assignment of error, defendant argues that the trial court erred in overruling his objection to an amendment by interlineation of the charging instrument that changed the identity of the controlled substance in question from cocaine to methamphetamine. Defendant asserts that the amendment was impermissible because it altered the essential nature of the charge. We disagree and, therefore, affirm.

On February 24, 1996, defendant was apprehended after he stole merchandise from a store. When defendant was searched incident to arrest, police found a bamboo pipe in his possession that contained residue of methamphetamine. As a result, defendant was charged in a district attorney’s information with theft in the second degree, ORS 164.045, and unlawful possession of a controlled substance. Count 2 of the information alleged:

“The said defendant on or about February 24, 1996, in the County of Multnomah, State of Oregon, did unlawfully, intentionally and knowingly possess a controlled substance, to-wit: cocaine, listed in Schedule II, contrary to the Statutes in such cases made and provided and against the peace and dignity of the State of Oregon.” (Emphasis added.)

After his arraignment, defendant petitioned to enter the court’s drug treatment diversion program (STOP) and the court admitted defendant into the program. As a condition of admission, defendant executed the following written agreement:

“1. I hereby give up the right to a preliminary hearing, Grand Jury Indictment and agree to proceed upon the District Attorney’s Information.
“2. I hereby give up any former jeopardy rights in any subsequent action upon this charge or any other offenses based upon the same criminal episode.
“3. I hereby give up my right to a speedy jury trial. I give up my right to call witnesses and to cross-examine the [150]*150State’s witnesses. I also give up my right to testify. I give up the right to contest the stop and/or search in my case.
“4. I hereby agree that should the treatment program be terminated after 14 days from today either by the Court or me, I will proceed to a Court trial based solely upon the facts in the police report and laboratory reports, which I hereby stipulate to. Both the State and I agree that during the first 14 days from today I may withdraw from STOP and have all my constitutional rights restored. The State, likewise, during the first 14 days, may withdraw from this agreement and oppose your entry into STOP as non-compliant with entry requirements. The State, at any time, may request your termination from STOP for non-compliance. The termination decision will be decided by the Court.” (Underlining in original.)

The laboratory report referred to in paragraph 4 of the STOP agreement identified the substance found in defendant’s possession as “methamphetamine, a Schedule II controlled substance.”

In July 1996, the trial court revoked defendant’s release agreement and issued a warrant for his arrest after he failed to appear as required by the terms of the STOP program. Defendant was taken into custody on the warrant in April 1998 and, when brought before the court, sought reinstatement in the program. On April 29, the trial court denied defendant’s request and, in open court, announced its intention to proceed with a stipulated facts trial because of defendant’s noncompliance with the STOP agreement. At the same hearing, the prosecutor requested leave to amend count 2 of the information to “change the controlled substance from cocaine to methamphetamine.” The court granted the state’s motion despite defendant’s objection and set trial for the following day. On April 30, the court proceeded to trial on stipulated facts as provided in the STOP agreement. The court received in evidence the police reports and the police laboratory report that identified the substance in defendant’s possession as methamphetamine. The court found defendant guilty of both counts in the amended information and entered a judgment of conviction accordingly.

Defendant appeals only from his conviction for unlawful possession of a controlled substance. Defendant [151]*151asserts that the trial court had no authority to permit the amendment of the information, because the defect in the original information — its failure to identify correctly the controlled substance he possessed — was one of substance rather than form. Therefore, defendant reasons, the state could not proceed to trial without first either obtaining a grand jury indictment on the charge or, alternatively, a waiver of indictment by defendant or a determination of probable cause from the court following a preliminary hearing. Because the state pursued none of those options, defendant contends that his conviction must be reversed.

In State v. Wimber, 315 Or 103, 113, 843 P2d 424 (1992), the Supreme Court recognized that, under Article VII (Amended), section 5, of the Oregon Constitution, a trial court may permit the amendment of a charging instrument that is defective in form but may not permit the amendment of a defect in substance. The court adopted a four-part test for determining whether a defect in a charging instrument is one of form or substance:

“(1) Did the amendment alter the essential nature of the [charge] against defendant, alter the availability to him of defenses or evidence, or add a theory, element, or crime? * * *
“(2) Did the amendment prejudice defendant’s right to notice of the charges against him and to protection against double jeopardy? * * *
“(3) Was the amendment itself sufficiently definite and certain? * * *
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“(4) Did the remaining allegations in the [charging instrument] state the essential elements of the offenses?” Id. at 114-15.

The answers to three of the four Wimber inquiries are straightforward; each suggests that the amendment in this case was one of form. As to the second question, defendant concedes that his right to notice of the charges against him was not prejudiced by the amendment. Defendant “stipulated” to the laboratory report in the STOP agreement. The [152]*152error that was corrected by the amendment to the information was readily apparent from the discrepancy between the laboratory report that identified the substance in his possession as methamphetamine and the original information that described it as cocaine. In addition, the correction of the error did not expose defendant to the risk of double jeopardy.1 The laboratory report proved that the pipe in defendant’s possession contained only methamphetamine — not cocaine. With respect to the third inquiry, defendant makes no argument that the amendment was indefinite or uncertain; to the contrary, it was specific and clear. The fourth element of the Wimber test is inapplicable here because the amendment merely substituted one controlled substance for another, as opposed to deleting material from the information.

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Related

State v. Kuznetsov
170 P.3d 1130 (Court of Appeals of Oregon, 2007)

Cite This Page — Counsel Stack

Bluebook (online)
5 P.3d 1109, 167 Or. App. 147, 2000 Ore. App. LEXIS 723, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-hansz-orctapp-2000.