State v. Perelli

553 P.3d 43

333 Or.App. 409

STATE of Oregon, Plaintiff-Respondent,

v.Thomas Rodger PERELLI, Defendant-Appellant.

A176025 (Control)

A176026

Court of Appeals of Oregon.

Submitted January 24, 2023

June 26, 2024

Douglas County Circuit Court, 21CR18989, 21CR03179; Ann Marie Simmons, Judge.

Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Stephanie J. Hortsch, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Jennifer S. Lloyd, Assistant Attorney General, filed the brief for respondent.

Before Aoyagi, Presiding Judge, and Joyce, Judge, and Hellman, Judge.

HELLMAN, J.

₄₁₀In this consolidated criminal appeal, defendant appeals a judgment of conviction for two counts of violating a stalking protective order (SPO), ORS 163.750(2)(b), and a probation violation judgment revoking his probation. Defendant asserts three assignments of error, contending that the trial court erred in denying his demurrer as to both counts and revoking his probation based on the convictions for those counts. Because we conclude that the trial court did not err when it denied defendant’s demurrer, we also reject his third assignment of error. Accordingly, we affirm.

BACKGROUND FACTS

In January 2021, defendant’s neighbors, E and S, obtained SPOs prohibiting him from entering their property. Two months later, defendant was convicted of stalking E and was sentenced to probation. Defendant was released on the same day. That evening, E and S’s surveillance camera recorded defendant in their back yard. As a consequence, defendant was charged with two counts of violating an SPO, ORS 163.750, with each count identified as a "Class C Felony." Specifically, the indictment alleged, in relevant part:

"The defendant *** having been served with or waived service of a court’s stalking protective order restraining defendant from entering onto the property located at [E and S’s address] *** did feloniously and recklessly engage in the conduct prohibited by the order by entering onto the property located at [E and S’s address]."

Defendant demurred to the indictment, arguing that "an indictment must contain subcategory facts under certain circumstances" and that the indictment just stated "feloniously. It doesn’t say *** that specific reason for the enhancement." The trial court denied the demurrer, reasoning that it "believe[d] that when you plead it as feloniously, you get to felonious but then the state would be forced to elect at trial whether they were proceeding under a theory of a prior conviction for stalking or violating a court’s stalking protective order." Further, the court explained that "in this instance, the addition of the conviction is *** ₄₁₁another element but it’s been pled as feloniously. I think that satisfies that element." The jury convicted defendant of both counts, and the trial court entered a general judgment of conviction and a probation violation judgment revoking defendant’s probation. This appeal followed.

ANALYSIS

[1] In his first two assignments of error, defendant challenges the trial court’s denial of his demurrer. "We review the denial of a demurrer for errors of law." State v. Woodall, 259 Or App 67, 69, 313 P.3d 298 (2013), rev. den., 354 Or. 735, 320 P.3d 567 (2014).

Defendant argues that the trial court should have granted the demurrer because the indictment failed to state the crime of felony violation of an SPO. Specifically, defendant contends that the indictment did not allege that he had a previous conviction for stalking or violating an SPO, facts that elevate the offense from a misdemeanor to a felony. In response, the state argues that the word "feloniously" and the citation to the relevant statute sufficiently conveyed that "the charge was based on the fact that [defendant] had a previous qualifying conviction." We agree with the state’s argument.

We begin our analysis with the general principles concerning indictments. ORS 132.550(7) requires that an indictment include 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." The Supreme' Court has explained that the three purposes of an indictment are,

"(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 of 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."

Antoine v. Taylor, 368 Or. 760, 772, 499 P.3d 48 (2021) (quoting State v. Cohen, 289 Or. 525, 529, 614 P.2d 1156 (1980)).

[2] ₄₁₂ORS 132.540(3), on which defendant relies, provides than an "indictment must allege that the defendant has previously been convicted of an offense when the previous conviction constitutes a material element of the charged offense." "A ‘material element’ is one that the state must prove to establish the crime charged." State v. Reynolds, 183 Or App 245, 249, 51 P.3d 684 (2002) (emphasis in original); see also State v. Wimber, 315 Or. 103, 109, 843 P.2d 424 (1992) ("An indictment fails to state facts constituting an offense when it fails to allege each of the essential elements of the offense.").

[3] However, ORS 132.540(4) provides that an indictment is not required to allege the exact statutory language that defines the crime. Instead, "other words conveying the same meaning may be used." Id.; State v. Fair, 326 Or. 485, 490, 953 P.2d 383 (1998) ("Generally, an indictment is sufficient to serve those functions and to withstand a demurrer if it tracks the pertinent wording of the statute defining the crime."). Moreover, we do not view an indictment’s allegations in isolation, but endeavor to "determine what an indictment communicates" by examining "the indictment as a whole." State v. Rodriguez-Rodriguez, 268 Or App 35, 38, 341 P.3d 247 (2014), rev. den., 357 Or. 164, 351 P.3d 52 (2015); see also State v. Jennings, 131 Or. 455, 461, 282 P. 560 (1929) ("The rules for the construction of indictments, however, contemplate that the meaning is to be determined from the whole instrument and not from any part alone.").

With those principles in mind, we turn to the relevant statute. Defendant was charged under ORS 163.750, which provides, in part, "(1) A person commits the crime of violating a court’s stalking protective order when:

"(a) The person has been served with a court’s stalking protective order as provided in ORS 30.866 or 163.738 or if further service was waived under ORS 163.741 because the person appeared before the court;

"(b) The person, subsequent to the service of the order, has engaged intentionally, knowingly or recklessly in conduct prohibited by the order[.]"

₄₁₃As relevant here, the crime is elevated from a Class A misdemeanor to a Class C felony if the person has a prior conviction for stalking or violating an SPO. ORS 163.750(2)(b).

[4] Here, the parties do not dispute that a prior conviction is an essential element of the felony offense. State v. Clayton, 210 Or App 442, 445, 150 P.3d 1078 (2007). However, defendant argues that "it is not in dispute that the indictment failed to allege that material element." We disagree. Although the indictment did not explicitly allege that defendant had a prior conviction for stalking or violating an SPO, ORS 163.750(2)(b), as we explained above, an indictment need not track a statute’s exact wording. ORS 132.540(4) ("[O]ther words conveying the same meaning may be used."). Thus, the dispositive question in this case is whether the term "feloniously" conveyed that defendant was alleged to have been convicted of stalking or violating an SPO, ORS 163.750(2)(b).

We have held that the word "feloniously" is sufficient to put a defendant on notice that the defendant was charged with a felony "as aggravated or enhanced" by proof of a specif- ic circumstance listed in the statute. State v. Early, 180 Or App 342, 348, 43 P.3d 439 (2002), overruled on other grounds by State v. Caldwell, 187 Or App 720, 723, 69 P.3d 830 (2003). Early is instructive here. In that case, the defendant argued that an indictment for felony driving while suspended or revoked under ORS 811.182 (1997) (felony DWSR) was insufficient because it pleaded that he "feloniously" drove white his driving privileges were suspended. Id. at 346, 43 P.3d 439. Because felony DWSR requires that the underlying suspension or revocation have resulted from a circumstance listed in ORS 811.182(3) (1997), the defendant contended that the state was required to plead one of those circumstances to elevate the misdemeanor to a felony. Id. at 345-46, 43 P.3d 439.

We determined that even though a suspension resulting from one of the circumstances under ORS 811.182(3) (1997) was an element of felony DWSR, "which of the several specific circumstances listed in the statute is not itself a material element of the crime. Accordingly, the failure to allege the circumstance that gave rise to the suspension does not mean that the indictment failed to state a crime." Id. at ₄₁₄348, 43 P.3d 439 (emphasis in original). After noting that the indictment’s caption provided, "ORS 811.182 *** DRIVING WHILE SUSPENDED-FELONY," we concluded that, "[the] allegation, especially when coupled with the statutory citation in the caption, put defendant on notice that he was charged with the felony crime, as aggravated or enhanced by proof of one or more of the factors enumerated in ORS 811.182(3)." Id. at 347-48, 43 P.3d 439. Thus, the indictment was "minimally adequate to state the crime of felony DWSR." Id. at 349, 43 P.3d 439.

In Reynolds, we considered Early in addressing a challenge to an indictment for fourth-degree assault, another...