State v. Stavenjord, 415 P.3d 1143

Defendant was recorded on store surveillance taking a box of hair dye on July 19, removed it from her bag, and later used it at a friend's house.
Store personnel identified defendant from the live video; an empty dye box was found at a friend’s home and dye was on the driveway.
Police investigation produced a citation and misdemeanor complaint that mistakenly listed the incident date as “on or about July 21.”
The state produced a date-stamped surveillance video and police report showing July 19 to defense more than two months before trial; defendant later filed an intent to assert an alibi for July 21.
At trial the state introduced the July 19 video and identifying witness testimony; defendant moved for judgment of acquittal arguing the proved date (July 19) differed from the charged date (on or about July 21).
Trial court denied the motion; defendant was convicted and appealed alleging prejudicial variance between charging date and proof.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether variance between charged date (“on or about July 21”) and proof (July 19) required acquittal	State: No impermissible variance; “on or about” covers approximate date; no prejudice	Defendant: Date variance prejudiced her because she had an alibi for July 21 and state failed to prove theft on that date	Court: Affirmed. Even if variance existed, date is not a material element and defendant was not prejudiced
Whether date of offense is a material element	State: Date is not material for third-degree theft	Defendant: Sought to treat time as material by reliance on alibi	Court: Date is not material; a defendant cannot make time a material element by asserting an alibi
Whether variance prejudiced defendant’s ability to prepare or present a defense	State: No surprise; defendant received video and report showing July 19 well before trial	Defendant: Alibi for July 21 meant prejudice when proof showed July 19	Court: No prejudice—defendant received actual-date evidence months before trial and did not show she would have presented a different defense
Preservation of the argument on appeal	State: Argues lack of preservation	Defendant: Trial record shows issue was raised and responded to	Court: Adequately preserved given the record and practical preservation rule

State v. Morgan, [citation="361 Or. 47, 388 P.3d 1085"] (standard for review of judgment-of-acquittal denial)
State v. Samuel, [citation="289 Or. App. 618, 410 P.3d 275"] (two-part test for variance: materiality and prejudice)
State v. Jackson, [citation="221 Or. 315, 351 P.2d 439"] (time not a material element; defendant cannot make time material by alibi)
State v. Pace, [citation="187 Or. 498, 212 P.2d 755"] (meaning of “on or about” as approximate date)
State v. Neal, [citation="73 Or. App. 816, 699 P.2d 1171"] (similar facts; approximate charged dates upheld where no prejudice)
State v. Parkins, [citation="346 Or. 333, 211 P.3d 262"] (preservation rule is practical; record evaluated for whether underlying policies are met)