State v. Kowalskij, 291 P.3d 802

Defendant was convicted on multiple counts of identity theft under ORS 165.800 and mail theft under ORS 164.162.
Count 13 of Case No. 090632573 charged unlawfully obtaining personal identification of OREGON DEPARTMENT OF TRANSPORTATION EAST PORTLAND MAINTENANCE STATION.
Indictment alleged personal identification of ODOT, not of a specific individual.
Trial court denied acquittal on Count 13, finding the indictment surplusage but that evidence showed personal identification of Mike Beam at ODOT.
Defense argued the indictment did not allege a crime since ODOT is not a person and identity theft targets a person.
Court affirmed conviction, holding identity of the victim is not a material element and variance was not prejudicial.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Is there a material variance between the indictment and proof?	State argues variance is not material; victim identity not essential.	Ortega contends variance is material because charged ODOT victim but proved Mike Beam.	No material variance; indictment suffices without victim identity.
Was the defendant prejudiced by the variance between indictment and proof?	State contends defendant defenses were independent of victim identity.	Ortega asserts prejudice from misidentification of victim.	No prejudice; defenses did not depend on the specific victim.

State v. Newman, 179 Or App 1 (2002) (materiality and prejudice test for variance between indictment and proof)
State v. Long, 320 Or 361 (1994) (identity of victim not an element when not essential to offense)
State v. Woodward, 187 Or App 233 (2003) (identity of victim not material; clerical vs substantive elements; applies ORS 135.725)
State v. Swanson, 90 Or App 543 (1988) (test for prejudice when variance between indictment and proof)