State v. Molver

225 P.3d 136, 233 Or. App. 239, 2010 Ore. App. LEXIS 23
CourtCourt of Appeals of Oregon
DecidedJanuary 20, 2010
Docket05092004; A137070
StatusPublished
Cited by3 cases

This text of 225 P.3d 136 (State v. Molver) 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. Molver, 225 P.3d 136, 233 Or. App. 239, 2010 Ore. App. LEXIS 23 (Or. Ct. App. 2010).

Opinion

LANDAU, P. J.

Defendant was charged by indictment with felony driving while under the influence of intoxicants (DUII). ORS 813.010(5)(a). Before trial, he demurred to the indictment on the ground that the state failed to comply with what he contends is a requirement of ORS 813.326 to identify by date and location the three prior convictions on which the state intended to rely. The trial court disallowed the demurrer. Defendant then pleaded no contest and was convicted. He appeals, again challenging the sufficiency of the indictment on the ground that it fails to satisfy what he contends are the requirements of ORS 813.326. He also contends that, in any event, the indictment was not sufficiently definite and certain to put him on notice as to the nature of the charges against him. We affirm.

The relevant facts are procedural and not in dispute. Defendant originally was charged with felony DUII by information. The information alleged that, among other things, defendant had been convicted of DUII three times in the 10 years prior to the current offense; it also identified three specific convictions by county, case number, and date of conviction.1 Approximately 10 weeks later, the state filed a superseding indictment, which included the following count:

“The defendant, on or about September 8, 2005, in Linn County, Oregon, did unlawfully and feloniously drive a motor vehicle upon a public highway or premises open to the public while under the influence of intoxicants, to-wit: alcohol, defendant having been previously convicted of driving under the influence of intoxicants at least three times in the ten years prior to the date of the current offense.”

Unlike the information, the indictment did not specifically identify the three prior convictions.

In the hearing on defendant’s demurrer, he acknowledged that he was aware of which particular prior convictions the state intended to rely on. He nevertheless argued that, in [242]*242light of the requirement in ORS 813.326 that, in a prosecution for felony DUII, “the state shall plead the prior convictions and shall prove the prior convictions unless the defendant stipulates to that fact prior to trial,” the indictment in his case was deficient for failure to specifically describe those convictions. In defendant’s view, where the state had failed to identify the particular convictions, the indictment alleged only misdemeanor DUII. The state disagreed that it was required under ORS 813.326 to allege the specific offenses; it also noted that defendant had notice of those offenses by way of the superseded information and that he had been further informed in that regard by way of discovery. The trial court agreed with the state’s latter argument and disallowed the demurrer.

On appeal, defendant argues that, although he had been informed of the relevant convictions by other means, ORS 813.326(1) required the state to plead the convictions in the indictment by date and location. In support of that argument, defendant notes that, under Article I, section 11, of the Oregon Constitution, all material elements of a crime must be found by a grand jury and charged in the indictment and that, under Article VII (Amended), section 5, of the Oregon Constitution, only the grand jury can amend the indictment. According to defendant, the wording of the relevant statutes makes clear that the legislature intended that a defendant’s specific, prior convictions are material elements of felony DUII. Defendant further argues that the absence of the relevant information hindered his ability to prepare a defense, such as the defense that one or more of the relied-on prior convictions was outside the required 10-year period; and that it hindered the ability of the trial court to determine whether the facts charged were sufficient to support a conviction. See, e.g., State v. Burns, 213 Or App 38, 42, 159 P3d 1208 (2007), rev dismissed, 345 Or 302 (2008) (purposes of indictment include providing notice so as to enable the defendant to prepare a defense, protecting against additional prosecution for same crime, informing trial court as to charges, and ensuring that offense for which the defendant is tried is based on facts found by a grand jury).

Alternatively, defendant argues that, even if the indictment sufficiently alleged felony DUII by tracking the language of ORS 813.010, it was insufficiently definite and [243]*243certain in violation of ORS 135.630(2) and ORS 135.550(7), and that pretrial discovery was insufficient to cure that deficiency. See State v. Sanders, 280 Or 685, 691, 572 P2d 1307 (1977) (in indicting the defendant for burglary, the state was required to specify the crime that it alleged the defendant intended to commit upon his unlawful entry into the building); State v. Kincaid, 78 Or App 23, 30, 714 P2d 624 (1986) (in indicting the defendant under Oregon Racketeer Influenced and Corrupt Organization Act, the state was required to plead specific facts constituting predicate offenses that the state intended to prove; where discovery disclosed numerous predicate offenses, some of which the state might not intend to prove, discovery did not cure lack of specificity in indictment). Defendant argues that, where felony DUII “presents significant investigative challenges to a defendant,” including investigation for the purpose of attacking the previous convictions as constitutionally invalid, see State v. Probst, 339 Or 612, 625-30, 124 P3d 1237 (2005), requiring such specificity was the legislature’s precise purpose in enacting ORS 813.326. Finally, he argues that the inclusion of specific convictions in the superseded information did not cure that problem because, in the absence of equivalent specifics in the indictment, he could not be certain that the state intended to continue to rely on the same convictions.

The state responds that, although the fact that defendant was convicted of DUII on three occasions in the previous 10 years is an element of felony DUII, the dates and locations of the previous DUII convictions that the state intends to rely on are not material elements of that crime and therefore need not be alleged in the indictment. The state notes that the text of ORS 813.326 refers only to the state’s obligation generally to plead and prove “the prior convictions,” without further specificity or detail.

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Cite This Page — Counsel Stack

Bluebook (online)
225 P.3d 136, 233 Or. App. 239, 2010 Ore. App. LEXIS 23, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-molver-orctapp-2010.