State v. Antoine, 344 P.3d 69

Background

Defendant was indicted on nine felony counts (4 sodomy, 4 first-degree sexual abuse, 1 furnishing sexually explicit material) each pleaded in statute language and covering a broad date range (Sept 1, 2006–Oct 1, 2008).
Discovery showed the victim reported many more discrete incidents than the counts specified; the indictment did not tie particular counts to particular incidents.
Defendant demurred, arguing the indictment lacked adequate specificity, risked double jeopardy, and violated the grand jury requirement; the trial court overruled the demurrer but ordered the prosecution to elect only incidents the grand jury considered.
The prosecutor told the court it would make a formal election of which specific incidents corresponded to each count after presenting its case-in-chief; defendant did not move to force an earlier election.
After the state rested, it elected specific incidents (adding descriptive location/type language), the court instructed the jury accordingly, defendant objected, and the jury convicted on all counts.
On appeal, defendant argued inadequate notice, violation of Article VII §5(3) (grand jury indictment), double jeopardy risk, and that the post-rest election/identifying instructions improperly amended the indictment; the appellate court affirmed.

Issues

Issue	State's Argument	Defendant's Argument	Held
Whether the indictment provided constitutionally sufficient pretrial notice	Indictment tracking statute is generally sufficient; any lack of specificity can be cured by the state's election at trial and defendant could have sought election earlier	Indictment was too indefinite (counts not tied to specific acts); defendant lacked notice and could not prepare or protect against double jeopardy	Indictment alone lacked adequate notice, but defendant had other remedies (e.g., move for election pretrial); demurrer was properly overruled because defendant did not pursue those remedies
Whether the indictment violated Article VII (Amended) §5(3) because counts were not tied to particular acts found by the grand jury	Grand jury considered the pattern of conduct and certified counts phrased by statute; under precedent the indictment need not be sent back where no new theory/element was added	Grand jury did not identify which specific incidents corresponded to counts, so prosecutor effectively chose crimes without grand jury determination	Wimber controls: indictment did not violate §5(3); no substantive change or new theory resulted from the state's election
Whether the state's late election and the court's instructions amended the indictment improperly (form vs. substance)	The election merely narrowed/clarified the indictment in form and did not add elements, prejudice notice, or change defenses	The election/added descriptors functionally amended the indictment and prejudiced defendant	Under Wimber’s multi-factor test, the election/instructions were not substantive amendments and were permissible
Whether defendant was entitled to judgment of acquittal based on indictment/grand jury procedure	Election and instructions resolved any ambiguity; no basis for acquittal	Trial procedures denied due process/notice and thus warranted acquittal	Motion for judgment of acquittal denied; appellate court affirmed trial rulings

Key Cases Cited

State v. Hale, 335 Or 612 (Sup. Ct.) (an indictment in statute language is generally sufficient but may be inadequate when multiple incidents make discovery an insufficient substitute for specificity)
State v. Cooper, 78 Or App 237 (Or. Ct. App.) (statute-language charges can be insufficient when a nonexclusive list of acts makes discovery inadequate to identify charged acts)
State v. Molver, 233 Or App 239 (Or. Ct. App.) (recognizes exception where discovery will not inform defendant which specific bad acts are charged)
State v. Wimber, 315 Or 103 (Sup. Ct.) (articulates form-vs-substance test for amendments to indictments and holds amendments that do not add new theory/element are permissible)
State v. Pachmayr, 344 Or 482 (Sup. Ct.) (cautions against assuming what grand jury intended; examines whether indictment allegations necessarily support the charged theory)
State v. Leistiko, 352 Or 172 (Sup. Ct.) (limits on admission of other-acts evidence absent jury finding on charged act)
State v. Burnett, 185 Or App 409 (Or. Ct. App.) (indictment must inform court of facts charged so it can determine sufficiency; defects may require sending matter back to grand jury)