State v. Stavenjord

A variance in a charging document and submitted trial evidence is permissible when the variance is not a material element of the case and the variance will not prejudice the defendant’s trial. State v. Samuel, 289 Or App 618, 626-27 (2017).

Defendant appealed judgment of conviction for theft in the third degree under ORS 164.043.  Defendant assigned error to the trial court’s denial of her motion for judgment of her acquittal.  On appeal, Defendant argued that the video tape evidence and charging information had different dates for the theft, which is an impermissible variance that would prejudice her case.  In response, the State argued that use of “on or about” language in reference to a date does not create a variance because it is broad enough to cover a range of dates in the charging document.  A variance in a charging document and submitted trial evidence is permissible when the variance is not a material element of the case and the variance will not prejudice the defendant’s trial.  State v. Samuel, 289 Or App 618, 626-27 (2017).  The Court of Appeals held that the variance in the defendant’s case between the charging instrument and the proffered evidence requires it to be permitted because the defendant admitted that the differing dates was not material to the case and the defendant’s case was not prejudiced because the both the document and the evidence were provided well in advance to the trial.  Affirmed.