No. 148 February 28, 2024 303
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
LEO JASON COX,
Defendant-Appellant.
Multnomah County Circuit Court
21CR46157; A178481
Andrew M. Lavin, Judge.
Submitted December 1, 2023.
Leo J. Cox filed the brief pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Rolf C. Moan, Assistant Attorney
General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, Joyce, Judge, and
Jacquot, Judge.
JOYCE, J.
Affirmed.
304 State v. Cox
JOYCE, J.
Defendant appeals from a judgment of conviction for
unlawful use of a weapon, ORS 166.220. He contends that
the trial court erred in denying his demurrer, in which he
argued that the indictment was deficient because it did not
name the victim of the crime alleged. Because we conclude
that the identity of the victim is not an essential element of
the crime, we affirm.
The state charged defendant with unlawful use of
a weapon after police received a report that defendant had
thrown a hatchet at a bicyclist. The indictment charging
defendant with unlawful use of a weapon alleged that he
“did unlawfully and intentionally attempt to use, carry
with intent to use and possess with intent to use unlawfully
against another person, a hatchet, a dangerous weapon[.]”
As noted, defendant demurred to the indictment because
it did not contain the name of the victim. The trial court
denied his demurrer, concluding that the victim’s name was
not an essential element of the crime.
On appeal, defendant assigns error to that denial
and reprises his argument that the indictment was required
to name the victim. We begin with some basic principles, the
constellation of which provides a complete answer to defendant’s claim of error. An indictment must contain “[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.” ORS 132.550(7). “An indictment fails to state
facts constituting an offense when it fails to allege each of
the essential elements of the offense.” State v. Wimber, 315
Or 103, 109,
843 P2d 424 (1992).
“Additionally, ‘as a matter of law, the identity of persons connected with a criminal offense need not be stated in
an indictment unless such identity is an essential element of
the crime charged.’ ” State v. Kelly, 263 Or App 361, 366,
328
P3d 757, rev den,
356 Or 575 (2014) (quoting State v. Shadley/
Spencer/Rowe,
16 Or App 113, 121,
517 P2d 324 (1973)).
Determining whether the identity of a person connected to
the crime is an essential element, in turn, depends on the
Cite as
331 Or App 303 (2024) 305
particular crime charged; unless the statute requires identification of the person associated with the crime, identity is
not considered an essential element. See State v. Nussbaum,
261 Or 87, 96,
491 P2d 1013 (1971), reh’g den (1972) (“[‘U]nless
a statute require[s] it, the name of a third person whose
identity is not an essential element of an offense or material
to the commission thereof need not be stated[.’]” (Quoting
Ronald A. Anderson, 4 Wharton’s Criminal Law and
Procedure § 1781 (1957) (emphasis in Nussbaum omitted;
brackets added).)).
State v. Fitzpatrick, 149 Or App 246, 248,
942 P2d
819 (1997), is a useful illustration of those principles. There,
the crime charged in the indictment—third-degree assault,
ORS 163.165, which requires proof that the defendant was
aided “by another person actually present”—did not require
the state to include the name of the “[ ]other person actually
present” in the indictment. Fitzpatrick,
149 Or App at 248-49.
In reviewing the defendant’s challenge to the indictment, we
observed that the indictment was “phrased in the statutory
language and sufficiently apprised defendant of the charges
against him,” and that the statute did not make the identity
of the “person actually present” an element of the offense.
Id. at 249; see also State v. Kowalskij,
253 Or App 669, 674,
291 P3d 802 (2012), rev den,
353 Or 748 (2013) (identity of
identity-theft victim was not material element); Shadley,
16
Or App at 122 (indictment, which charged the defendant
with providing drugs “to another,” was not required to state
the name of the other person because the statute describing
the offense did not require it).
Framed slightly differently, we have consistently
held that an indictment is sufficient if it describes the
offense consistently with the statute. And, where the statute does not require the identity of the victim or another
person associated with the crime as an element of the crime,
the indictment is not deficient for not specifying the name of
that person.
Here, the applicable statute, ORS 166.220(1)(a),
requires the state to prove that defendant used a weapon
“against another.” The indictment tracks the language of
the statute; indeed, defendant does not contend otherwise.
306 State v. Cox
And, like the statutes at issue in Fitzpatrick and Shadley,
there is no express requirement that the indictment include
the person’s name, and it is thus not an essential element
of the crime.1 The indictment was therefore not deficient for
not specifying the name of the victim.
In arguing for a contrary result, defendant relies on
a case that addressed the question of when an indictment
can be amended to include the name of a person related to
the crime without first resubmitting the case to the grand
jury. Citing State v. Moyer, 76 Or 396, 398,
149 P 84 (1915),
defendant argues that “in crimes alleging acts against the
person of another, it is necessary to allege that person as a
part of the description of the offense.” Yet Moyer does not
assist defendant here.
In Moyer, the defendant filed a successful demurrer
to an indictment, which charged the defendant with arson.
76 Or at 398. Arson was then defined, in part, as burning
the property “of another.”
Id. (quoting Lord’s Oregon Laws,
title XIX, ch III, § 1932 (1910)). The indictment alleged that
the defendant set fire to a stable but did not specify whether
the property belonged to another. Id. at 396. The trial court
granted the demurrer, and the state amended the indictment to include the name of the person who owned the property that the defendant allegedly had burned. Id. at 396-
97. The Supreme Court concluded that the state could not
amend the indictment to include the property owner’s name
without first resubmitting the case to the grand jury. Id. at
401. In so holding, the court stated that “it was necessary to
allege the owner of the [property] as a part of the description of the offense” inasmuch as the statute referred to the
property “of another”—and its omission from the indictment
was “fatal to a demurrer.” Id. at 398. That omission could
not, in the court’s view, be remedied by amendment because
whether the property belonged to someone other than the
defendant was a “matter of substance.” Id. at 400. That is
1
Below, defendant asserted that ORS 132.540(5) requires that the indictment name the victim. That statute does not stand for the broad proposition that
a victim or person associated with the crime must be named. Rather, that statute
provides that if an indictment charges certain sex crimes and if the indictment
refers to the victim’s identity, the indictment “may include a pseudonym, initials
or another signifier instead of the name of a victim.” ORS 132.540(5)(a).
Cite as 331 Or App 303 (2024) 307
because, at that time, an owner of property could destroy
their own property by fire without being guilty of arson of
any degree.2 State v. Director,
113 Or 74, 79,
227 P 298, rev’d
and rem’d on reh’g on other grounds, 113 Or 87,
231 P 191
(1924) (“[A]llegation of ownership in an indictment charging
arson is part of the description of the offense … and is
essential in order to show that the property burned did not
belong to defendant[.]” (Citing Moyer,
76 Or at 398.)); see
also State v. Murphy,
134 Or 63, 65,
290 P 1096, reh’g den
(1930) (“An owner of a building may destroy it by fire without being guilty of any crime. In order to constitute arson
of any degree it is necessary that the indictment allege
that the burning was of a structure belonging to another.”).
Thus, Moyer stands for the narrow proposition that, under
the arson statutes in effect at that time, it was necessary to
allege in the indictment that the property burned belonged
to someone other than the defendant—which the indictment
in that case had failed to allege—and not that the person
had to be identified by name to survive a demurrer.
In sum, because the victim’s identity was not an
essential element of the offense, the trial court correctly
denied defendant’s demurrer.
Affirmed.
2
That is no longer the case. Arson in the first degree is presently defined, in
relevant part, as burning the “property of the person or the property of another
person.” ORS 164.325.
