State v. Samuel

The state bears the burden to prove an amendment to an indictment is consistent with the grand jury’s findings. State v. Long, 320 Or 361, 370, 885 P2d 696 (1994). A variance is impermissible if it is prejudicial; a variance is prejudicial if it “require[s] a defendant to develop a different argument.” State v. Boitz¸ 236 Or App 350, 356, 236 P.3d 766 (2010).

Defendant appealed a judgment of conviction for felon in possession of a firearm (ORS 166.720). Defendant assigned error the trial court’s permitting the state to prosecute on an alternative theory than what was originally alleged in the indictment, and allowing evidence of a thirty-year old felony conviction. Defendant argued that the change of theory from “felony conviction within the past fifteen years” to “felony conviction” was impermissible because the amount of time passed is material to the charge, and the state failed to present evidence his previous conviction was within fifteen years. Defendant further argued that evidence of the felony should have been suppressed because the impermissible alternative theory was prejudicial. In response, the state argued its change in theory was permissible because it was correcting a defect in form and not a defect in substance because “within fifteen years” is surplusage. The state bears the burden to prove an amendment to an indictment is consistent with the grand jury’s findings. State v. Long, 320 Or 361, 370, 885 P2d 696 (1994). A variance is impermissible if it is prejudicial; a variance is prejudicial if it “require[s] a defendant to develop a different argument.” State v. Boitz¸ 236 Or App 350, 356, 236 P.3d 766 (2010). The Court of Appeals determined the variance was impermissible because it required the defendant to defend against the state’s theory of “felony conviction” and rather than the theory presented in the indictment, felony conviction “within the last 15 years.” Conviction on Count 5 reversed and remanded for resentencing, otherwise affirmed.