State v. Johnson

278                    July 30, 2025                No. 677

         IN THE COURT OF APPEALS OF THE
                 STATE OF OREGON

                  STATE OF OREGON,
                   Plaintiff-Respondent,
                             v.
                JESSE LEON JOHNSON,
                  Defendant-Appellant.
                Lane County Circuit Court
                  21CR37036; A179635

   R. Curtis Conover, Judge.
   Argued and submitted February 26, 2024.
   Stacy M. Du Clos, Deputy Public Defender, argued the
cause for appellant. Also on the briefs was Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, Office of Public
Defense Services.
   Timothy A. Sylwester, Assistant Attorney General,
argued the cause for respondent. Also on the brief were Ellen
F. Rosenblum, Attorney General, and Benjamin Gutman,
Solicitor General.
  Before Ortega, Presiding Judge, Powers, Judge, and
Hellman, Judge.
   HELLMAN, J.
   Reversed and remanded.
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         HELLMAN, J.
          Defendant appeals a judgment of conviction for
felon in possession of a firearm (FIP), ORS 166.270(1). On
appeal, defendant argues that the trial court erred in its
pretrial ruling and instruction to the jury that defendant
could be convicted of FIP based on evidence that differed
from the evidence on which the grand jury based its indictment. Defendant argues that the variance between the
indictment and the proof offered by the state at trial was
impermissible because it required him to defend against a
different theory of the case and allowed the state to obtain
a conviction based on a factual theory that was never presented to the grand jury. The state contends that defendant
failed to preserve his arguments and that he invited any
error. As explained below, we conclude that defendant adequately preserved his objection to the variance and did not
invite the error. We further conclude that the variance violated defendant’s right under Article VII (Amended), section
5(3), of the Oregon Constitution to be tried on the same factual theory on which the grand jury based its indictment.
Finally, we conclude that the constitutional violation was
not harmless. Accordingly, we reverse and remand.
                I. STANDARD OF REVIEW
        Whether a variance between a charging instrument
and the state’s proof at trial is permissible is a question of law,
which we review for legal error. State v. Samuel, 

, 

 (2017), rev den, 

 (2018).
     II. FACTS AND TRIAL COURT PROCEDURAL
                    HISTORY
         Defendant was the passenger in a vehicle that
police pursued on July 31, 2021. Officers pursued the vehicle
in a high-speed chase for approximately 50 miles before successfully stopping it and arresting defendant and the driver.
During the chase, a pedestrian on Crescent Avenue saw the
vehicle pass by and heard a sound “like a piece of metal
hitting the ground.” The pedestrian searched the area and
found a firearm, holster, and magazine, which he turned
over to law enforcement. The state presented that evidence
to the grand jury, and defendant was indicted for FIP.
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         During the discovery process, the state made defendant aware of additional evidence that it intended to offer
at trial that was based on an event that occurred in the
Pleasant Hill area on July 23, 2021. The evidence included
witness testimony describing a vehicle, in which defendant was a passenger, that was pursuing a second vehicle.
Both vehicles drove to a dead-end road, and video evidence
showed defendant exit the passenger side of the vehicle with
what appeared to be a firearm in his hand. After defendant
ran out of view of the camera, witnesses heard multiple gun
shots before both cars drove away. Law enforcement found
shell casings in the area that were later matched through
ballistics testing to the firearm found on Crescent Avenue.
         Defendant filed a motion in limine to exclude the
evidence related to the Pleasant Hill incident. The trial
court rejected defendant’s arguments and, following the presentation of evidence, instructed the jury that it could convict defendant of FIP based on either the Crescent Avenue or
Pleasant Hill incident,1 so long as its verdict was unanimous
as to which of the two incidents constituted the act. The jury
convicted defendant.2
                III.   APPELLATE PROCEEDINGS
         On appeal, defendant assigns error to the trial court’s
denial of his pretrial motion and the court’s instruction that
the jury could base its guilty verdict on either incident. In a
combined argument, defendant contends that the Pleasant Hill
evidence provided a separate factual theory on which to convict
him and that those facts were never presented to the grand
jury. Defendant argues that that factual difference amounts to
an impermissible variance between the evidence presented to
the grand jury and the evidence presented at trial.
    1
      The parties and the trial court referred to the different incidents based on
their respective dates (July 23 and July 31). Referring to the incidents based on
their dates suggests that the issue on appeal can be addressed by holding that a
date is not a material element of the charge. See, e.g., State v. Haji, 

, 

 (2020) (recognizing that “time is not a material element of most
offenses”). But the issue cannot be resolved in that manner. That analysis is not
relevant to the issue presented on appeal, which is whether defendant was tried
and convicted for acts that were not presented to the grand jury. To emphasize that
the case involves two distinct acts, we refer to them by their respective locations.
    2
      Neither party requested a jury poll, so the record does not reflect the incident on which the jury based its guilty verdict.
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         The state does not respond to the merits of defendant’s variance arguments. Instead, the state contends that
defendant’s arguments are unpreserved and that, in any
case, he invited any error by agreeing to the jury instruction that allowed the jury to return a guilty verdict based on
either incident.
                         IV. ANALYSIS
        We begin by addressing the state’s procedural arguments and then explain our conclusions that defendant adequately preserved his argument and that he did not invite
the error.
A.    Defendant preserved his argument.
        Defendant based his written motion in limine that
sought to exclude the Pleasant Hill evidence on evidentiary rules of admissibility. Specifically, he argued that the
Pleasant Hill evidence constituted “other bad act evidence”
and that “any uncharged acts of firearm possession” should
be excluded under OEC 403 and OEC 404. In arguing that
motion to the trial court, however, defendant expanded
his argument to include contentions that the court should
exclude the evidence because it was never presented to the
grand jury. Specifically, defense counsel argued:
        “I suppose I’ll also say, your Honor, that’s what the
     Grand Jury was tasked with deciding. That was the testimony presented to the Grand Jury was evidence of what
     happened on the [Crescent Avenue incident]. I don’t believe
     the Grand Jury was ever presented any evidence of the
     [Pleasant Hill incident], or anything to do with that—that
     particular side of the case in indicting [defendant]. That’s
     what they came up with.
        “So, had the State wanted to indict him as on or between,
     or had indicted him on both dates, I suppose we’d have a
     merger argument then, but I think they could have indicted
     him on both days, if they’d so chose, and they didn’t.
        “…
        “And I don’t want to get into a trial of, you know who
     shot at who, what their—or what happened, what were
     the facts, the circumstances around that issue, and I don’t
     want the jury to be left wondering about that because I
282                                             State v. Johnson

     think that’s—that’s terribly prejudicial for [defendant] to
     have them wondering about that. And I don’t want them
     deciding the issue of his possession of the firearm on the
     [Crescent Avenue incident] by un-alleged actions on the
     [Pleasant Hill incident], if that makes sense.”
         In response, the state argued that the Pleasant Hill
evidence was admissible for several reasons, including that
it was probative circumstantial evidence supporting the
Crescent Avenue evidence, and that the indictment charged
defendant with FIP “on or about” July 31, which encompassed the Pleasant Hill incident on July 23. As to defendant’s argument that the grand jury had not been presented
with the Pleasant Hill evidence, the state argued that it
“could prove that [defendant] was in possession on both of
those dates” and that it was “not bound by what the Grand
Jury considered in our presentation of evidence today.”
          The court admitted the evidence, agreeing with the
state’s argument that the Pleasant Hill evidence was probative as to whether defendant committed FIP. It explained that
FIP is a “continuing offense” and that, because the indictment alleged the offense was committed “on or about” July
31, the Pleasant Hill evidence was probative as to whether
he committed FIP during the Crescent Avenue chase.
          We conclude that defendant’s arguments, including
those quoted above, sufficiently preserved the challenge he
makes on appeal. Below, the state had a chance to, and indeed
did, respond to those arguments by contending that it was
“not bound by what the Grand Jury considered.” Accordingly,
the trial court had “the chance to consider and rule on [defendant’s] contention,” and the preservation requirements were
met. Peeples v. Lampert, 

, 

 (2008);
see also State v. Quebrado, 

, 310, 

 (2024)
(“At its core, preservation asks whether the parties, and the
trial court, had a fair opportunity to meet the merits of the
argument later advanced on appeal and thereby avoid the
error at the outset or to correct the error upon its occurrence.”).
B.    Defendant did not invite the error.
         We are also unpersuaded by the state’s argument
that defendant invited the error by agreeing to a concurrence
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instruction that allowed the jury to base its verdict on either
incident. Defendant objected to the Pleasant Hill evidence
before trial. After the court ruled against defendant’s objection, that ruling became the “law of the trial.” McCathern
v. Toyota Motor Corp., 

, 

 (2001)
(when a trial court overrules a party’s objection to evidence,
the party is entitled to treat the ruling as the law of the trial
and to explain or rebut the evidence without waiving its evidentiary objection on appeal).
         Once the trial court ruled against defendant’s objections, he was entitled to strategically counter that evidence
without waiving his initial objection. Defendant did so by
moving the court to require the state to elect its FIP theory
as occurring during either one of the two separate incidents.
The state responded that it was not required to elect a theory
and, after an off-the-record discussion between the parties,
the court provided a concurrence instruction allowing the
jury to find defendant guilty of FIP on either the Crescent
Avenue incident or the Pleasant Hill incident, so long as it
did so unanimously. Because defendant had already objected
on the ground that the Pleasant Hill evidence had not been
presented to the grand jury, and the court had ruled against
him, he was not required to renew that objection. See State
v. Walker, 

, 

 (2011) (explaining
that once a court has made a ruling, “a party is generally
not obligated to renew his or her contentions in order to preserve them for the purposes of appeal”). Accordingly, defendant did not waive his appellate challenge to that ruling,
and we turn to the merits.

C.   The trial court’s rulings violated defendant’s grand jury
     rights under Article VII (Amended), section 5(3), of the
     Oregon Constitution.
         Under Article VII (Amended), section 5(3), a person charged with a crime punishable as a felony has a right
to indictment by grand jury.3 That right ensures that “the

    3
      Article VII (Amended), section 5(3), provides: “Except as provided in subsections (4) and (5) of this section, a person shall be charged in a circuit court
with the commission of any crime punishable as a felony only on indictment by a
grand jury.”
284                                                        State v. Johnson

grand jury, not the prosecutor” “determine[s] whether a
particular charge should be brought” and that “the charge
presented against a defendant was based on facts found by
the grand jury.” State v. Long, 

, 

 (1994) (citation and internal quotation marks omitted).
That right may be violated when the state’s allegations in
the indictment, which must be based on facts presented to
the grand jury, differ from the proof that the state offers
at trial. State v. Benton, 

, 

(2022), aff’d, 

, 

 (2023). In legal terms,
we have described that difference as a “variance.” 

         When a defendant alleges a variance, we consider
three questions to determine whether the variance was permissible.4 The first question is whether the variance concerns a material element of the crime. Samuel, 

. If it does, the variance is impermissible. 

 The second question is whether “the defendant suffered prejudice to
[their] defense” because of the variance. 

 (quoting State
v. Newman, 

, 

 (2002)). A defendant suffers prejudice to their defense when the variance
requires them to defend against a different theory of the
case or develop a different argument. State v. Boitz, 

, 

 (2010). Such a variance is also
impermissible. 

 The third question, which we have previously described as a “final consideration,” is “whether the
defendant was, in fact, tried on the offense that was indicted
by the grand jury.” Benton, 

; see also Long,

 n 13 (“Defendant has the constitutional right
to be tried only for the specific criminal act as to which the
grand jury handed down the indictment.”). The variance is
impermissible if the state cannot meet its burden to show
that it tried its case based on facts that were presented
     4
       We have previously described our variance analysis as one in which we
“consider two factors,” Samuel, 

, or involving a “two-part test.”
State v. Stavenjord, 

, 

, rev den, 

(2018). Those two factors or parts are whether the variance concerns a material element and whether the variance prejudiced defendant’s defense by requiring him to defend against a new theory of the case. However, our law makes
clear that there is always a “final consideration” in a variance analysis, which is
whether defendant was in fact tried for conduct that was presented to the grand
jury. Benton, 

. Because two “factor[s]” or “part[s]” plus a final
consideration equals three inquiries, we have chosen to describe our analysis
here as “consider[ing] three questions.”
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to the grand jury. Samuel, 

; see also
Benton, 

 (recognizing that “the state has
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”). Any one of the three considerations
are sufficient, on their own, to conclude that the variance
is impermissible. That is, if a variance concerns a material
element or prejudices a defendant’s defense or if the state
fails to show that its prosecution is based on facts presented
to the grand jury, the variance is impermissible. Samuel,

.
         Here, the trial court explicitly allowed the jury
to base its guilty verdict on the Pleasant Hill evidence.
Although the trial court stated that the evidence was admissible because FIP is a “continuing offense”5 and therefore
probative as to whether defendant possessed a firearm “on
or about” July 31,6 the trial court did not limit consideration
of the Pleasant Hill evidence for that purpose. Instead, the
trial court permitted the jury to convict defendant for the
Pleasant Hill conduct alone.
        The state did not present evidence to the grand
jury about defendant’s alleged acts in Pleasant Hill. Rather,
the state only presented evidence concerning the Crescent
Avenue incident, including that: (1) defendant was the passenger in a vehicle fleeing the police; (2) a pedestrian walking on Crescent Avenue saw the pursuit and heard a noise
like “metal hitting the ground” as defendant’s vehicle passed
by; and (3) the pedestrian discovered a firearm along the
roadside where the vehicle passed. The indictment reflects
that the only witnesses who testified to the grand jury were
those who witnessed or were involved in the Crescent Avenue
chase.
        At trial, however, the state presented video evidence of defendant exiting a vehicle at a dead-end road in
the Pleasant Hill area with what it argued was a firearm
in his hand; the state called witnesses who heard gunshots
    5
      See State v. Nunes, 

, 

 (2014) (explaining
that, for purposes of merger, FIP is a “continuing offense”).
    6
      “On or about” language in an indictment does not override the constitutional protections of Article VII (Amended), section 5(3).
286                                                          State v. Johnson

at that location and time; and the state presented evidence
from law enforcement officials who later found shell casings
at that location. The state failed to establish that any of that
evidence was presented to the grand jury. Indeed, the state
took the position that, in trying its case, it was “not bound
by what the Grand Jury considered.” The state has not met
its burden on this record.7
         Because we conclude that defendant’s constitutional rights were violated, we turn to whether the error
was harmless. “Under Article VII (Amended), section 3, of
the Oregon Constitution, we must affirm a judgment despite
error if there is ‘little likelihood that the particular error
affected the verdict.’ ” State v. Roberts, 

,

 (2025) (quoting State v. Davis, 

,

 (2003)). Here, because neither party requested
a jury poll, we do not know whether the jury voted to convict defendant for the Pleasant Hill incident. But given the
comparative strength of the state’s evidence of that incident,
including a video of defendant exiting a vehicle with what
the state argued was a firearm, we conclude that there is a
strong possibility that the jury based defendant’s guilt on a
factual incident that was never presented to the grand jury.
Indeed, the prosecutor relied on the video of the Pleasant
Hill incident throughout his closing argument. See State v.
Bowman, 

, 

 (2025) (“[T]he
prosecution’s explicit reliance on [the erroneously admitted
evidence] in closing argument, persuades us that the prosecutor … believed the evidence was important to proving
the case.”). We thus conclude that there was more than “little
likelihood” that the constitutional error in this case affected
the verdict.
        Because the jury was permitted to convict defendant for acts that were not presented to the grand jury,
there was an impermissible variance in defendant’s case.
That variance violated defendant’s Article VII (Amended),

    7
      On appeal, defendant argues that the variance was impermissible both
because he “suffered prejudice to his defense” and because it violated his constitutional right to be tried on the specific act for which he was indicted by the grand
jury. Because the state did not carry its burden of proving that defendant was
tried on the same factual theory upon which the grand jury based its indictment,
we do not consider whether the variance prejudiced his defense.
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section 5(3), right to have a grand jury determine whether a
charge should be brought. On this record, the error was not
harmless. Accordingly, we reverse and remand. Should the
state decide to retry defendant for the Crescent Avenue incident, defendant can raise any and all objections to retrial,
including those grounded in double jeopardy, at that time.
        Reversed and remanded.