290 P.3d 847
Or. Ct. App.2012Background
- Defendant was convicted of hindering prosecution under ORS 162.325 and challenges the denial of a judgment of acquittal for failure to prove the indictment.
- Indictment alleged defendant prevented by deception the discovery or apprehension of Shane Culp, a felon.
- Statute ORS 162.325 requires preventing or obstructing by deception anyone from performing an act which might aid in the discovery or apprehension of a felon.
- Evidence at trial showed deception delayed officers from entering the house and hindered apprehension; the jury was instructed under ORS 162.325(1)(d) using the broader “anyone from performing an act which might aid” theory.
- The indictment omitted the “anyone from performing an act which might aid in” phrase; the court held this variance prejudiced defendant and reversible error.
- Court declined to address additional unpreserved assignments and reversed the conviction on the first issue.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether a material/prejudicial variance invalidates the conviction | State argued evidence supported indictment as written | Variance misaligned theory and prejudiced defense | Yes, prejudice from variance; reversed |
Key Cases Cited
- State v. Newman, 179 Or App 1 (2002) (prejudice assessment in variance cases)
- State v. Boitz, 236 Or App 350 (2010) (prejudice depends on theories presented; variance impact)
- State v. Long, 320 Or 361 (1994) (definition and assessment of prejudice in variance)
- State v. Barrie, 227 Or App 378 (2009) (due process notice; fundamental rights concerns)
- PGE v. Bureau of Labor and Industries, 317 Or 606 (1993) (dictionary/plain-meaning approach to statutory terms)