State v. Samuel, 410 P.3d 275

Background

Police executed a search warrant at defendant's home; they found large amounts of methamphetamine, scales, cash bundles, two firearms in the living room, and psilocybin in defendant's bedroom.
The state indicted defendant for multiple counts including felon in possession of a firearm (Count 5), alleging he had been convicted of a felony "within the past 15 years."
Discovery showed a 2005 conviction listed as a felony (but actually treated as a misdemeanor at sentencing) and 1989 felony convictions; the 2005 conviction was excluded as not a felony.
The state conceded it could not prove a felony conviction within 15 years but sought to proceed at trial by proving prior felonies from 1989 (outside the 15-year allegation).
The trial court allowed the state to proceed on the 1989 convictions; defendant renewed a motion for judgment of acquittal at close of the state's case; court denied it; jury convicted on all counts.
On appeal the court held the variance between the indictment (felony within 15 years) and the proof (1989 felonies) was prejudicial; Count 5 reversed and remanded for resentencing; other convictions affirmed as the error was harmless to them.

Issues

Issue	State's Argument	Defendant's Argument	Held
Whether the state could prove felon-in-possession using prior felonies outside the 15-year period alleged in the indictment	The 15-year phrase was surplusage; the indictment charged the statutory offense and the State could prove an alternate statutory basis (multiple felonies)	The State elected a specific theory (felony within 15 years) by grand jury; proving a different theory (1989 felonies) is a prejudicial variance	The variance was prejudicial; State failed to show the grand jury decided on the alternate theory, so proof of 1989 convictions was impermissible for Count 5; conviction reversed
Whether the trial court erred by denying defendant's pretrial motion to exclude evidence of the 1989 convictions	The prior-felony evidence was relevant to prove felon-in-possession under an alternative statutory theory	The 1989 convictions were outside the time alleged and would prejudice defendant; the indictment bound the State to the 15-year theory	Error to admit the 1989 convictions; they should have been excluded as irrelevant to the indictment's theory
Whether the trial court erred by denying defendant's motion for judgment of acquittal on Count 5	No; the State presented evidence of felony convictions (1989) sufficient for the offense	Yes; because the indictment alleged a conviction within 15 years and the State presented no proof of that allegation, judgment of acquittal should have been granted	Motion for judgment of acquittal should have been granted as to Count 5; conviction reversed
Whether admitting the 1989 convictions was harmless as to the other counts	Any error was harmless given the strong evidence on the drug-related counts	Admission was prejudicial and could have tainted the jury on other counts	Admission was harmless as to the remaining counts given overwhelming evidence of current drug offenses; those convictions affirmed

Key Cases Cited

State v. Hansen, 253 Or. App. 407 (discusses prejudicial variance where indictment required proof of "prevent" but proof established only "obstruct")
State v. Boitz, 236 Or. App. 350 (variance in enhancement allegation prejudicial when it forced defendant to develop a different defense)
State v. Pachmayr, 344 Or. 482 (permissible amendment where record showed grand jury found the same factual basis as trial theory)
State v. Long, 320 Or. 361 (amendment allowed when evidence shows grand jury actually found the same facts proved at trial)
State v. Wimber, 315 Or. 103 (distinguishes defects of form from defects of substance in grand jury indictments)
State v. Kowalskij, 253 Or. App. 669 (test for whether indictment states offense without a particular allegation)
State v. Newman, 179 Or. App. 1 (framework for assessing materiality and prejudice in variance challenges)
State v. Davis, 336 Or. 19 (standard for harmless evidentiary error)
State v. Hudson, 279 Or. App. 543 (burden and standard for proving evidentiary error not prejudicial)