Defendant was charged by indictment with felony driving while under the influence of intoxicants (DUII). ORS 813.010(5)(a). Before trial, he demurred to the indictment on the ground that the state failed to comply with what he contends is a requirement of ORS 813.326 to identify by date and location the three prior convictions on which the state intended to rely. The trial court disallowed the demurrer. Defendant then pleаded no contest and was convicted. He appeals, again challenging the sufficiency of the indictment on the ground that it fails to satisfy what he contends are the requirements of ORS 813.326. He also contends that, in any event, the indictment was not sufficiently definite and certain to put him on notice as to the nature of the charges against him. We affirm.
The relevant facts are procedural and not in dispute. Defendant originally was charged with felony DUII by information. The information alleged that, among other things, defendant had been convicted of DUII three times in the 10 years prior to the current offense; it also identified three specific convictions by county, case number, and date of conviction.
“The defendant, on or about September 8, 2005, in Linn County, Oregon, did unlawfully and feloniously drive a motor vehicle upon a public highway or premises open to the public while under the influence of intoxicants, to-wit: alcohol, defendant having been previously convicted of driving under the influence of intoxicants at least three times in the ten years prior to the date of the current offense.”
Unlike the information, the indictment did not specifically identify the three prior convictions.
In the hearing on defendant’s demurrer, he acknowledged that he was aware of which particular prior convictions the state intended to rely on. He nevertheless argued that, in light of the requirement in ORS 813.326
On appeal, defendant argues that, although he had been informed of the relevant convictions by other means, ORS 813.326(1) required the state to plead the convictions in the indictment by date and location. In support of that argument, defendant notes that, under Article I, section 11, of the Oregon Constitution, all material elements of a crime must be found by a grand jury and charged in the indictment and that, under Article VII (Amended), section 5, of the Oregon Constitution, only the grand jury can amend the indictment. According to defendant, the wording of the relevant statutes makes clear that the legislature intended that a defendant’s specific, prior convictions are material elements of felony DUII. Defendant further argues thаt the absence of the relevant information hindered his ability to prepare a defense, such as the defense that one or more of the relied-on prior convictions was outside the required 10-year period; and that it hindered the ability of the trial court to determine whether the facts charged were sufficient to support a conviction. See, e.g., State v. Burns,
Alternatively, defendant argues that, even if the indictment sufficiently alleged felony DUII by tracking the language of ORS 813.010, it was insufficiently definite and certain in violation of ORS 135.630(2) and ORS 135.550(7), and that pretrial discovery was insufficient to cure that deficiency. See State v. Sanders,
The state responds that, although the fact that defendant was convicted of DUII on three occasions in the previous 10 years is an element of felony DUII, the dates and locations of the previous DUII convictions that the state intends to rely on are not material elements of that crime and therefore need not be alleged in the indictment. The state notes that the text of ORS 813.326 refers only to the state’s obligation generally to plead and prove “the prior convictions,” without further specificity or detail. The state further argues that the indictment was sufficiently definite and сertain because it stated the acts constituting the offense “in ordinary
As discussed, an indictment must contain, in substance, a “statement of the acts constituting the offense in ordinary and concise language, without repetition, and in such manner as to enable a person of common understanding to know what is intended.” ORS 132.550(7). As the Supreme Court explained in State v. Fair,
“(1) to inform the defendant of the nature of the crime with sufficient particularity to enable him to make his defense, (2) to identify the offense so as to enable the defendant to avail himself оf his conviction or acquittal thereof if he should be prosecuted further for the same cause, and (3) to inform the court of the facts charged so that it may determine whether or not they are sufficient to support a conviction.”
Id. at 489 (citing, inter alia, State v. Montez,
Defendant does not dispute that the indictment in this case sufficiently “tracked” the wording of the relevant portions оf ORS 813.010, noted above. Accordingly, we first determine whether ORS 813.326(1) required greater specificity, a task that involves application of the interpretive method set out in PGE v. Bureau of Labor and Industries,
ORS 813.326(1) provides, in part:
“In a prosecution for fеlony driving while under the influence of intoxicants under ORS 813.010, the state shall plead the prior convictions and shall prove the prior convictions unless the defendant stipulates to that fact prior to trial.”
By its terms, ORS 813.326(1) requires the state to “plead the prior convictions.” That phrase, in isolation, is susceptible to competing interpretations: it reasonably could mеan that the state must plead the specifics of the prior convictions, or it reasonably could mean only that the state must plead the existence of the prior convictions, without specifics.
We do not consider a portion of a statute in isolation, however. See To v. State Farm Mutual Ins.,
ORS 813.326(1) requires the state to plead the defendant’s prior convictions and to “prove the prior convictions unless the defendant stipulates to that fact prior to trial.” (Emphasis added.) The words “that fact,” in the singular, clearly refer back to the phrase “the prior convictions.” From that phrasing, it is apparent that the legislature contemplated that “the prior convictions” constituted a single fact. If the legislature had intended to require the state to prove the specifics of each individual prior conviction, such specifics would entail proof of multiple facts, including
It may be noted that the statute’s reference to “thаt fact” refers back to the state’s obligation to prove a defendant’s “prior convictions,” and not to the state’s obligation to plead those convictions. But the point remains that the singular term refers to the phrase “the prior convictions,” which is the identical phrase that the statute employs in reference to the state’s pleading obligation. Where the legislature used the phrase “the prior convictions” in both portions of the statute — indeed, in the same sentence — we infer that each usage has the same meaning. See PGE,
Other provisions of ORS 813.326 support our understanding that that statute does not require the state to plead the specifics of a defendant’s prior conviсtions. ORS 813.326(l)(b) provides, in part, that “[t]he defendant’s stipulation to the prior convictions constitutes a judicial admission to that element of the accusatory instrument.” (Emphasis added.) Like the legislature’s use of the singular noun “fact” in the phrase “that fact,” its use of the singular nouns “admission” and “element” demonstrates that it considered a defendant’s prior convictions to have significance in regard to their existence as a collective entirety rather than in regard to their individual and separate identities. Stated another way, for the purpose of ORS 813.326, a defendant’s “prior convictions” constitute a single element, albeit consisting of multiple components.
We conclude that the state was not required to plead the specifics of defendаnt’s prior convictions in the indictment. It follows that defendant was not entitled to allowance of his demurrer on that ground.
We turn to whether the indictment was sufficiently definite and certain. As noted, the trial court concluded that it was. Relying primarily on Sanders, defendant argues to the contrary. For the following reasons, we reject that argument.
As previously discussed, an indictment ordinarily is sufficient if it tracks the pertinent wording of the statute defining the crime. Sanders establishes an exception to that rule, which applies where pretrial discovery is unlikely to inform the defendant of the specific criminal conduct that the state intends to prove. See Fair,
In Fair, the defendant was charged with racketeering under ORS 166.720(3), which provides that “[i]t is unlawful for any person * * * associated with[ ] any enterprise to conduct or participate, directly or indirectly, in such enterprise through a pattern of racketeering activity * * (Emphasis added.) “Pattern of racketeering activity” is defined as “engaging in at least two inсidents of racketeering activity that have the same or similar intents, results, accomplices, victims or methods of commission or otherwise are interrelated by distinguishing characteristics, including a nexus to the same enterprise, and are not isolated incidents * * *.” ORS 166.715(4). The indictment in that case listed various crimes committed by the defendant that constituted “incidents of rackеteering activity” and alleged, in language tracking ORS 166.715(4), that those incidents constituted a “pattern of racketeering activity.” Fair,
The defendant in Fair
“At its core, defendant’s argument is that the charged crime is complex, making the indictment difficult to defend against. But complex is not the same as uncertain, and difficult is not the same as indefinite. Even if it is complex or difficult to defend against, an indictment may allege multiple theories of committing the same crime in the words of thе statute defining the crime. The racketeering indictment in this case was sufficiently definite and certain to fulfill the constitutional and statutory functions that this court has identified.”
Id. at 491. The court therefore affirmed the trial court’s dis-allowance of the defendant’s demurrer.
We applied the Supreme Court’s reasoning in Fair to a similar argument in State v. Magana,
Again, the indictment in this сase alleged that defendant “did unlawfully and feloniously drive a motor vehicle * * * while under the influence of intoxicants * * * defendant having been previously convicted of driving under the influence of intoxicants at least three times in the ten years prior to the date of the current offense.” As discussed, the language in the indictment tracked the language of ORS 813.010(5), and ORS 813.326(1) does not require greater specificity as to defendant’s prior convictions. The only remaining question is whether the “complexity” of the charge — here, the possibility of alternative “theories” as to which prior convictions formed the predicate for the charge — rendered the indictment insufficient.
We answer that question in the negative. It is apparent that the cоmplexity, if any, of the charge in this case is of both a different type and far lesser magnitude than that of the charges in Fair, in which the state alleged a “pattern” of criminal conduct that implicated multiple theories as to the manner in which the predicate offenses were related to each other and, therefore, the manner in which the defendant had сommitted the crime, but as to which the Supreme Court concluded that the indictment was sufficient. See
Affirmed.
Notes
At the hearing on defendant’s demurrer, the state conceded that, as alleged in the information, the date of conviction in one of the cases was erroneous. That factual error is not pertinent to the issue on appeal.