State v. Wimber

843 P.2d 424, 315 Or. 103, 1992 Ore. LEXIS 240

• Court: Oregon Supreme Court
• Decided: December 24, 1992
• Docket: CC C90-01-30494; CA A66481; SC S38863
• Status: Published

Opinions

GRABER, J.

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 163.405¹ (counts 1,2, and 3), three counts of rape in the first degree, ORS 163.375² (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 actionf.]”

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 “anytime, 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 P2d (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 P2d 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 P2d 1136 (1988) (upholding indictment alleging ultimate facts that made up offense); State v. Mims, 235 Or 540, 543-47, 385 P2d 1002 (1963) (indictment must allege all elements of statutory offense); State v. Reynolds, 229 Or 167, 170, 366 P2d 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 P2d 354 (1955) (indictment must “show on its face” the essential ingredients of the crime charged); State v. Buck, 200 Or 83, 103, 264 P2d 1051 (1953) (indictment must charge material parts and necessary ingredients of relevant offense); State v. Smith, 182 Or 497, 502, 188 P2d 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 135.717¹⁴ (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 P2d 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 P2d 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 P2d 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 P2d 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 arraignment. This court will not disturb the trial court’s exercise of that discretion except in a case of clear abuse.” Id. at 600 (citation omitted).

Here, the arraignment court did not object when defendant “reserved] all rights against each indictment.” Although the statements of the trial court respecting the demurrer were ambivalent,¹⁷ the court indisputably allowed defendant to demur at the beginning of trial, and it indisputably allowed defendant to “renew” the demurrer at the end of trial. In the circumstances, we find that the court allowed defendant to demur at a time other than at the arraignment and that the court did not abuse its discretion thereby. Accordingly, the demurrer was timely.¹⁸

We next turn to the issue of the trial court’s amendment of counts 10, 11, and 12 and its denial of defendant’s demurrer as to those counts. The state argues that defendant did not preserve his claim of error. After reviewing the record, we conclude that defendant did preserve the claimed error; we therefore consider whether the trial court erred in amending the indictment by modifying the dates of the crimes alleged in counts 10,11, and 12 and in denying defendant’s demurrer as to those counts.

Article VII (Amended), section 5, of the Oregon Constitution, provides in part:

“ (3) Except as provided in subsections (4) and (5) of this section, a person shall be charged in a circuit court with the commission of any crime punishable as a felony only on indictment by a grand jury.

“(4) The district attorney may charge a person on an information filed in circuit court of a crime punishable as a felony if the person appears before the judge of the circuit court and knowingly waives indictment.

“(5) The district attorney may charge a person on an information filed in circuit court if, after a preliminary hearing before a magistrate, the person has been held to answer upon a showing of probable cause that a crime punishable as a felony has been committed and that the person has committed it, or if the person knowingly waives preliminary hearing.

“(6) An information shall be substantially in the form provided by law for an indictment. The district attorney may file an amended indictment or information whenever, by ruling of the court, an indictment or information is held to be defective in form." (Emphasis added.)

See State v. Moyer, 76 Or 396, 399, 149 P 84 (1915) (Oregon Constitution authorizes amendment of indictment as to form;¹⁹ amendment as to substance is unauthorized unless approved by grand jury or authorized by law). Cf. State v. Russell, 231 Or 317, 322-23, 372 P2d 770 (1962) (time to amend substantial facts is while indictment is before grand jury).

We thus are presented with the question whether the trial court’s shortening of the time period stated in counts 10, 11, and 12 of the indictment, so that the offenses alleged therein fell wholly within the applicable statute of limitations, altered the substance of the indictment. In State v. Moyer, supra, this court held that an indictment for the crime of arson, a material element of which is that a person willfully burns the property of another, must state the name of the owner of the burned property and that an amendment adding the name was one of substance. The court described matters of form as

“matters which are not essential to the charge and merely clerical matters, such as where the defendant cannot be misled to his prejudice by the amendment[.]” 76 Or at 399.

The court went on to explain that,

“where there is an omission or misstatement which prevents the indictment from showing on its face that an offense has been committed, or to charge the particular offense, the test [for distinguishing matters of substance from matters of form in the making of an amendment] is whether the same defense is available to the defendant after the amendment as before and upon the same evidence.” Ibid.

A matter that is essential to show that an offense has been committed is a matter of substance. Id. at 400.

This court has not ruled on a challenge precisely like the one in this case. Neither have we located identical cases in other jurisdictions.²⁰

Consistent with the holding in State v. Moyer, supra, our analysis proceeds as follows:

(1) Did the amendment alter the essential nature of the indictment against defendant, alter the availability to him of defenses or evidence, or add a theory, element, or crime? In this case, the answer is “no.”

(2) Did the amendment prejudice defendant’s right to notice of the charges against him and to protection against double jeopardy? Again, the answer is “no.”

(3) Was the amendment itself sufficiently definite and certain? It was.

Because the amendment deleted allegations, we ask one additional question.

(4) Did the remaining allegations in the indictment state the essential elements of the offenses? They did.

In State v. Smith, 182 Or 497, 500-01, 188 P2d 998 (1948), this court explained that the constitutional purposes of requiring an indictment by grand jury are threefold:

“(1) to inform the accused of the nature and character of the criminal offense with which he is charged with sufficient particularity to enable him to make his defense, (2) to identify the offense so as to enable the accused to avail himself of his conviction or acquittal thereof in the event that he should be prosecuted further for the same cause, and (3) to inform the court of the facts charged so that it may determine whether or not they are sufficient to support a conviction.”

See also State v. Gortmaker, 295 Or 505, 510-16, 668 P2d 354 (1983) (discussing history of grand jury). The constitutional purposes of requiring an indictment by grand jury were met here. No new or different theory, element, or crime was added. To the contrary, the indictment returned by the grand jury was narrowed. The amendment made by the trial court was a permissible amendment as to a defect in the form of the indictment, and the trial court did not err in making it.²¹

The rule under the Constitution of the United States is similar. See Russell v. United States, 369 US 749, 770, 82 S Ct 1038, 8 L Ed 2d 240 (1962) (“settled rule” in federal courts is that indictment may not be amended except by resubmission to grand jury, unless the change is “merely a matter of form”); Berger v. United States, 295 US 78, 82, 55 S Ct 629, 79 L Ed 1314 (1935) (amendment as to form is allowed so long as a defendant’s rights are not affected and the defendant is adequately apprised of the charges). See also U.S. v. Denny, 165 F2d 668, 669 (7th Cir 1947) (“[e]very fact which must be proved to make the act complained of is a matter of substance, and * * * all else * * * is formal”), cert den 333 US 844 (1948).

Defendant’s rights were not affected. He was adequately apprised of the charges against him. Nothing was added to the indictment, and the allegations remaining after the deletions stated all essential elements of the offenses. Under federal law, the trial court did not err in amending the indictment in this case.

As amended, counts 10,11, and 12 of the indictment complied with the time requirements of ORS 132.540:

“ (1) The indictment is sufficient if it can be understood therefrom that:

<<$ sfc * * jfc

‘ ‘ (c) The crime was committed at some time prior to the finding of the indictment and within the time limited by law for the commencement of an action therefor.”

Defendant does not contend that the counts were insufficient in any other respect. The trial court did not err in denying the demurrer as to amended counts 10, 11, and 12.

The decision of the Court of Appeals and the judgment of the circuit court are affirmed.

1 ORS 163.405 provides:

“(1) A person who engages in deviate sexual intercourse with another person or causes another to engage in deviate sexual intercourse commits the crime of sodomy in the first degree if:

“(a) The victim is subjected to forcible compulsion by the actor;

“(b) The victim is under 12 years of age;

“(c) The victim is under 16 years of age and is the actor’s brother or sister, of the whole or half blood, the son or daughter of the actor or the son or daughter of the actor’s spouse; or

“(d) The victim is incapable of consent by reason of mental defect, mental incapacitation or physical helplessness.

“(2) Sodomy in the first degree is a Class A felony.”

2 ORS 163.375 provides:

“(1) A person who has sexual intercourse with another person commits the crime of rape in the first degree if:

“(a) The victim is subjected to forcible compulsion by the person;

“(b) The victim is under 12 years of age;

“(c) The victim is under 16 years of age and is the person’s sibling, of the whole or half blood, the person’s child or the person’s spouse’s child; or

“(d) The victim is incapable of consent by reason of mental defect, mental incapacitation or physical helplessness.

“(2) Rape in the first degree is a Class A felony.”

3 ORS 163.425 (1987) provided:

“(1) A person commits the crime of sexual abuse in the first degree when that person:

“(a) Subjects another person to sexual contact; and

“(A) The victim is less than 12 years of age; or

“(B) The victim is subjected to forcible compulsion by the actor; or

“(b) Subjects another person to sexual intercourse, deviate sexual intercourse or, except as provided in ORS 163.412, penetration of the vagina, anus or penis with any object not a part of the actor’s body, and the victim does not consent thereto.

“(2) Sexual abuse in the first degree is a Class C felony.”

4 Before 1989, the statute of limitations for criminal offenses was three years. ORS 131.125 (1987). ORS 131.125 was amended in 1989 to provide a six-year statute of limitations for rape, sodomy, sexual abuse, and similar offenses “if the victim, at the time of the crime, was under 18 years of age.” Or Laws 1989, ch 831, § 1. However, that statute was not made retroactive until 1991. Or Laws 1991, ch 388, §2.

5 ORS 135.640 provides:

“When the objections mentioned in ORS 135.630 appear upon the face of the accusatory instrument, they can only be taken by demurrer, except that the objection * * * that the facts stated do not constitute an offense, may be taken at the trial, under the plea of not guilty and in arrest of judgment.” ■

6 ORS 135.610(1) provides:

“The demurrer shall be entered either at the time of the arraignment or at such other time as may be allowed to the defendant for that purpose.”

7 The prosecutor pointed out to the trial court that, under ORS 135.610, a demurrer must be made at the time of arraignment or at such other time as may be allowed. Defendant responded:

“Your honor, the rule is contra when the ground is the one that I stated, the facts wouldn’t constitute a crime. I argued that. I believe the Court of Appeals has so stated that you can raise that one ground any time, even on appeal, and it states so in the statute.

(<>fe * * * *

“Well, I believe in — I insist respectfully that my timing is appropriate because the statute says on this ground you can put in a demurrer at any stage of the proceeding.” (Emphasis added.)

8 The court did not amend the dates alleged in counts 1 through 3 (sodomy) or in counts 4 through 6 (rape).

9 We need not decide whether the trial court was correct in stating that the procedure followed here was the only one available in the circumstances.

10 On appeal, defendant also argued that it was reversible error to admit evidence of sexual contact with the victim occurring before January 25,1987, where he could be charged only with crimes occurring after that date. He relies on OEC 401, 403, and 404(3).

The trial court ruled, when explaining its pretrial resolution of the statute of limitations problem, that the prosecutor “can put in the same evidence” even if the trial were limited to counts 10 through 12, “because it would go to the relationship, intent, and conduct.” The prosecutor also had argued that the evidence would be relevant to show motive and absence of mistake. When the trial court asked defense counsel for a response, counsel stated only that the demurrer should be sustained and that the court’s resolution was not an ‘ ‘appropriate remedy.’ ’ Defendant did not argue that the evidence would be irrelevant (OEC 401), would be unduly prejudicial (OEC 403), or would prove only defendant’s character (OEC 404(3)).

At trial, the victim testified to sexual contact with defendant that occurred before January 24, 1987, as well as to contact after that date. Defendant made no objection under OEC 401,403, or 404(3).

On this record, the evidentiary arguments that defendant now advances were not preserved for review.

11 The jury instructions and verdict forms were consistent with the amended indictment. For example, the trial court instructed the jury:

“Now, Counts 10,11, and 12 are charges of sexual abuse that are alleged to have occurred between January 25th, 1987 and November 27th, 1989. Here the factual allegations are the same as in Counts 7, 8, and 9, only the time period is different.

“In other words, there has to be proof that the criminal act was committed in Multnomah County, Oregon; that the defendant knowingly subjected [the victim] to sexual contact; and that [the victim] was younger than 12 years of age at the time of the sexual contact.

“But for these Counts, the State has to prove that the criminal act was committed on or between January 25,1987, and November 27,1989.

“In the verdict form that you will have with you in your jury room, the dates between which the criminal act must have occurred for each Count is put parenthetically following each Count to keep that straight for you.”

Defendant did not challenge those instructions or the verdict form.

12 We have considered defendant’s other assignments of error as well, but are not persuaded by any of them.

13 ORS 132.550(6) provides:

“The indictment shall contain substantially the following:

íí* * * * *

“(6) A statement in each count that the offense charged therein was committed on, or on or about, a designated date, or during a designated period of time.”

14 ORS 135.717 provides:

“The precise time at which the offense was committed need not be stated in the accusatory instrument, but it may be alleged to have been committed at any time before the finding thereof and within the time in which an action may be commenced therefor, except where the time is a material element in the offense.”

15 Furthermore, where the conduct constituting the offense is alleged to have taken place over a period of time, the indictment need not state the date of each instance of the conduct, but may state inclusive dates between which the conduct is alleged to have occurred. State v. Darlene House & James House, 260 Or 138, 145-46, 489 P2d 381 (1971).

16 At the conclusion of trial, the court stated: “I think [a demurrer] can be continued at any time,” described the demurrer as “pending,” and stated that “on the eve of trial” he had ‘ ‘indicated that it could be renewed or refiled at the conclusion of trial.”

17 When ruling after trial, the court said:

“[B]ecause the demurrer was not timely filed, I indicated that it was impossible to take it up on the eve of trial. I proceeded to trial and indicated that it could be renewed or refiled at the conclusion of trial.

“And I’m taking it up now and granting it as those counts [1 and 4 through 9].

‘ ‘But I want to make it perfectly clear that in my judgment the defendant has no right to complain about mixing of these cases for trial because it was his responsibility that this matter wasn’t properly considered before going to trial.

“And I can just see an imaginative lawyer somewhere down the line arguing that because evidence was received on these first counts when they were properly demurrable, that the convictions on the other three remaining counts should be retried.

“And that’s just wrong. It rewards improper practices. And I just can’t use strong enough language that we can’t have that kind of practice engaged in in our trial courts.

“While it might be possible to just take the position of not considering the demurrers at all, I don’t think that is fundamentally fair, but I feel it would be entirely unfair to all of the participants in the case to retry all of these counts because of the tardiness of the demurrer.”

18 We do not wish to he understood as approving of the practice of raising demurrers at trial. As this court stated in State v. Montez, 309 Or 564, 597, 789 P2d 1352 (1990):

“The proper time for defendant’s objection to the indictment was before trial. A pre-trial demurrer would have given both the court and the state a timely opportunity to review the indictment and to make any necessary corrections before trial.”

19 State v. Moyer, supra, was decided in 1915, almost 60 years before the adoption of Article VII (Amended), section 5, in 1974. The applicable phrases in the constitution were nearly identical, however. Article VII, section 18, provided in part:

“No person shall be charged in any circuit court with the commission of any crime or misdemeanor defined or made punishable by any of the laws of this state, except upon indictment found by a grand jury; provided, however, that any district attorney may file an amended indictment whenever an indictment has, by a ruling of the court, been held to be defective in form[.]”

20 Courts of other jurisdictions have held that, where time is not an essential element of the offense, amendment of the particular date of the alleged commission of the offense is a matter of form, not substance. See Annot, Power of Court to Amend Indictment, 7 ALR at 1531-34 (collecting cases); Annot, Power of Court to Amend Indictment, 68 ALR at 931 (same). Cf. U.S. v. Goldstein, 502 F2d 526 (3d Cir 1974) (alteration of date in indictment charging income tax evasion was substantive, not merely one of form, because date of alleged conduct was made material by statute in question).

21 Defendant also argues that, in charging counts 10,11, and 12, the grand jury might have had in mind only acts that occurred before January 25,1987. Because those counts charged that the crimes occurred between January 25, 1984, and November 27, 1989, defendant’s argument is inconsistent with the language of the indictment. Neither defendant nor this court is free to look behind or disregard that language. See State v. Guse, 237 Or 479, 481, 392 P2d 257 (1964) (court presumes that an indictment was duly returned on sufficient evidence; no authority for an accused to look behind an indictment); State v. McDonald, 231 Or 24, 34-35, 361 P2d 1001 (court will not examine deliberations of grand jury), cert den 370 US 903 (1962).