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State v. Kowlaskij

Summarized by: 

Date Filed: 12-05-2012
Case #: A144735
Ortega, P.J. for the Court; Edmonds, S.J.; and Sercombe, J.
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A144734.pdf

Criminal Law: When a person is charged with identity theft under ORS 165.800, the charging document's failure to identify the alleged victim who was injured or who was intended to be injured is not a material variance under ORS 135.725.

Defendant appealed a conviction of several counts of identity theft and mail theft. Defendant contends that on count 13, the trial court erred in denying his motion for acquittal of the identity theft charges against ODOT. During a consent search, an officer found stacks of stolen mail, checks, and bills addressed to different names in Defendant's possession. One of the items of mail stolen by Defendant was addressed to the attention of Mike Beam, at East Portland ODOT. The State's charging document did not specify Mike Beam as the victim, and Defendant contends that due to the failure to identify a victim, the State's indictment did not sufficiently allege a crime. Defendant contends that the evidence ultimately relied on by the State was a variance of substance, not form. The Court of Appeals concluded that this variance in proof did not compel the allowance of the Defendant's motion for judgment of acquittal. Further, ORS 135.725 specifically provides that an erroneous allegation in a charging document as to the person injured or intended to be injured is not material. The Court further held that because Defendant did not assert that the variance in the identification of a victim prejudiced him in his defense, it did not. Accordingly, the trial court did not err in denying Defendant's motion for judgment of acquittal as to count 13. Affirmed.