State v. Johnson

Oregon Court of Appeals · 2025 · Criminal Law

342 Or. App. 278 (2025)

Updated August 1, 2026

Criminal Lawinsanity / ALI testgrand juryvarianceindictmenttrial proofArticle VII (Amended) section 5(3)felon in possession

Facts

The grand jury heard evidence only about a July 31, 2021 Crescent Avenue incident, in which defendant was a passenger in a fleeing vehicle and a pedestrian later found a firearm, holster, and magazine along the route after hearing something metal hit the ground. During discovery, the state disclosed additional evidence from a July 23, 2021 Pleasant Hill incident showing defendant exiting a vehicle with what appeared to be a firearm, followed by gunshots; shell casings there were later matched to the Crescent Avenue firearm. Defendant moved to exclude the Pleasant Hill evidence and argued, among other things, that it had not been presented to the grand jury. The trial court admitted the evidence and instructed the jury that it could convict based on either the Crescent Avenue or Pleasant Hill incident if unanimous as to which incident constituted the act.

Issue

Whether the trial court violated defendant's Article VII (Amended), section 5(3), grand-jury rights by allowing the state to obtain a felon-in-possession conviction based on the Pleasant Hill incident when the grand jury had been presented only with evidence of the Crescent Avenue incident. Also at issue were whether defendant preserved that argument and whether he invited any error by agreeing to the jury instruction.

Rule

Under Article VII (Amended), section 5(3), a felony defendant has the right to be tried on the same factual theory on which the grand jury based the indictment. In assessing a variance between indictment and proof at trial, courts consider three questions: whether the variance concerns a material element, whether it prejudices the defense by requiring the defendant to defend against a different theory or argument, and whether the defendant was in fact tried on the offense or factual theory presented to the grand jury; if any one of those is satisfied, the variance is impermissible. The state bears the burden to show that the factual theory on which the grand jury based the indictment was the same one on which the state tried its case, and "on or about" language does not override those constitutional protections.

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One of 10 multiple-choice questions for this case. Pick an answer to see why.

A grand jury in Oregon indicts Nolan Price for felon in possession of a firearm after hearing only evidence that officers found a revolver in a ditch along a chase route in Salem on August 10. At trial in Eugene, the prosecutor also introduces evidence of a separate August 2 incident in which Nolan was seen carrying a pistol outside a warehouse, and the jury is instructed it may convict if it unanimously agrees on either incident.

Under the majority's rule, which is the best analysis?

Explanation. Article VII (Amended), section 5(3), requires that a felony defendant be tried on the same factual theory on which the grand jury based the indictment. The key problem is not merely timing, but that the jury was allowed to convict on a distinct incident. A unanimity instruction does not cure that defect, and 'continuing offense' or broad charging language does not let the state obtain conviction on a separate factual incident never shown to have been presented to the grand jury.