State v. Antoine

As long as the State’s election of criminal acts it was prosecuting at trial does not introduce a new theory, element, or crime it is permissible.

Defendant was convicted of nine felonies: sodomy, first-degree sexual abuse, and furnishing sexually explicit material. Each count alleged commission of a crime during the same 25-month period. Defendant unsuccessfully (through demurrer) challenged the form of the indictment based on its lack of specificity and the greater number of acts presented to the grand jury than charged. Before trial defendant argued that the indictment provided insufficient notice of the charges. The state subsequently put the defense on notice that it would make its election after its case in chief. Defendant did not object to the timing. At trial, after the state presented its case-in-chief, the state “elected” and ascribed specific and separate criminal acts to each of the counts. Defendant then unsuccessfully opposed the state’s election through a motion for judgment of acquittal and objected to the court’s jury instructions that were crafted based on the state’s election. Defendant argued that his constitutional rights were violated because of insufficient notice of the charges, because of the risk of double jeopardy and and the state's failure to try the defendant for criminal acts in which the grand jury indicted him. Defendant argued that no one knew what the grand jury intended to charge in each count, thereby placing the discretion to charge in the hands of the district attorney which violated the Oregon Constitution. The court found that the trial court’s overruling of the demurrer was correct because defendant could and should have discovered the state’s election of the criminal acts it would prosecute before trial and because the state’s election of criminal acts it was prosecuting at trial did not introduce a new theory, element, or crime. For the same reasons the court affirmed the trial court’s denial of the motion for judgment of acquittal. Lastly, the court found that the jury instructions did not improperly amended the indictment. Affirmed.