S055487, Opinion — State v. Kuznetsov

479
Argued and submitted September 15, decision of Court of Appeals and judgment of
circuit court affirmed December 18, 2008
STATE OF OREGON,
Respondent on Review,
v.
VENIAMIN N. KUZNETSOV,
Petitioner on Review.
(CC CR0313871, CR0314194;
CA Al29452 (Control), A129453, A129454;
SC S055487)
199 P3d 311

480 	State v. Kuznetsov
CJS, Indictments and Informations § 195.
En Banc
On review from the Court of Appeals.*
Kristin A. 	Carveth, 	Deputy Public Defender, 	Salem,
argued the cause and filed the brief for petitioner on review.
With her on the brief was Peter Gartlan, Chief Defender,
Legal Services Division, Office of Public Defense Services.
David B. Thompson, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on review.
With him on the brief were Hardy Myers, Attorney General,
and Mary H. Williams, Solicitor General.
WALTERS,J.
The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.
* Appeal from Clackamas County Circuit Court, Eve. L. Miller, Judge. 215 Or
App 533, 170 P3d 1130 (2007).

Cite as 345 Or 479 	481
WALTERS,J.
In 	this 	case, 	we 	address 	whether 	Article 	VII
(Amended), section 5, of the Oregon Constitution prohibits a
trial court from allowing a substantive amendment to an
information charging a misdemeanor and, if not, whether the
trial court has authority to do so.
The facts that present those issues arose in April
2003, when defendant drove his vehicle into the side of vic-
tim's minivan, injuring victim severely enough to require
hospitalization. In December 2003, the state charged defen-
dant by information with multiple misdemeanor offenses
arising out of the collision, including fourth-degree assault.
ORS 163.160(1) sets forth the elements of fourth-degree
assault and provides, in part:
"A person commits the crime of assault in the fourth
degree if the person:
"(a) 	Intentionally, 	knowingly 	or 	recklessly 	causes
physical injury to another; or
"(b) 	With criminal negligence causes physical injury to
another by means of a deadly weapon."
The state alleged, under paragraph (b) of that statute, that
defendant, acting with criminal negligence, injured victim
with a deadly weapon-a vehicle.
After defendant had failed to appear at multiple
hearings resulting in the issuance of bench warrants, the
case was set for trial in May 2005. On the date of trial, the
state moved to file an "amended information." The state had
determined that the original information contained a poten-
tial defect. ORS 161.015(2) defines a "deadly weapon" as "any
instrument * * * specifically designed for and presently capa-
ble of causing death or serious physical injury." However, an
ordinary road vehicle may not meet that definition. See State
v. Pachmayr, 344 Or 482, 485, 185 P3d 1103 (2008) (distin-
guishing dangerous from deadly weapons and indicating that
the state may be required to adduce evidence to demonstrate
that a vehicle is a deadly, as opposed to a dangerous,
weapon). In its proposed amended information, the state
deleted the allegations that brought the charge under ORS

482 	State v. Kuznetsov
163.160(1)(b)-that defendant had acted with criminal neg-
ligence and caused injury by means of a deadly weapon-and
substituted an allegation that defendant had acted reck-
lessly, thereby bringing the charge under paragraph (a) of
ORS 163.160(1).
Defendant opposed the state's motion and argued
that the state effectively was seeking to charge a new crime
and was precluded from making that substantive amend-
ment to the information. Moreover, defendant asserted, by
the time the state sought to file the amended information, the
two-year statute of limitations for bringing a charge of
fourth-degree assault had run. See ORS 131.125(6)(b) (state
must commence prosecution for fourth-degree assault within
two years of the commission of the offense). It followed, defen-
dant asserted, that that charge should be dismissed.
The state responded that it was "merely fixing a
technical mistake," and the trial court permitted the amend-
ment. The trial court determined that the amendment did
not prejudice defendant because he "ha[d] been provided
with * * * all of the discovery*** which would give [him]
notice, factually, of the various offense[s] that could, in fact,
be charged." It further found that the statute of limitations
had been tolled "by the defendant's unauthorized departure
for a year and a half." See ORS 131.145(2) ("the period oflim-
itation does not run during * * * [a]ny time when the accused
hides within the state so as to prevent process being served
upon the accused"). Consequently, the trial court allowed the
filing of the amended information. The jury then convicted
defendant 	of multiple 	charges, 	including 	fourth-degree
assault.
Defendant timely appealed, arguing that Article VII
(Amended), section 5(6), of the Oregon Constitution pre-
cluded the trial court from allowing a substantive amend-
ment to an information such as the one that the trial court
had granted and, alternatively, that the trial court lacked
authority to grant the state's motion to amend the indict-
ment. The Court of Appeals held that Article VII (Amended),
section 5, does not prohibit substantive amendments to mis-
demeanor informations and declined to consider defendant's
alternative argument because he did not raise it until oral

Cite as 345 Or 4 79 	483
argument. State v. Kuznetsov, 215 Or App 533, 543, 543 n 4,
170 P3d 1130 (2007). For the reasons set out below, we agree
with the construction of the Oregon Constitution that the
Court of Appeals adopted. We also reach defendant's alter-
native argument and conclude that the trial court had
authority to permit the substantive amendment of a misde-
meanor information.
Article VII (Amended), section 5, articulates the con-
stitutional requirements for the issuance of criminal charges
and provides, in part:
"(3) 	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.
"(4) 	The district attorney may charge a person on an
information filed in circuit court of a crime punishable as a
felony if the person appears before the judge of the circuit
court and knowingly waives indictment.
"(5) 	The district attorney may charge a person on an
information filed in circuit court if, after a preliminary
hearing before a magistrate, the person has been held to
answer upon a showing of probable cause that a crime pun-
ishable as a felony has been committed and that the person
has committed it, or if the person knowingly waives prelim-
inary hearing.
"(6) 	An information shall be substantially in the form
provided by law for an indictment. The district attorney
may file an amended indictment or information whenever,
by ruling of the court, an indictment or information is held
to be defective in form."
Subsections (3) to (5) of Article VII (Amended), sec-
tion 5, set forth the accusatory instruments required to
charge a "crime punishable as a felony." Those subsections
specify that, when alleging the commission of a felony, the
state either must secure an indictment from a grand jury or
file an information. If the state proceeds by information, then
the defendant is entitled to a preliminary hearing before a
magistrate. Thus, absent a waiver, the state cannot charge a
defendant with a felony unless persons outside the office of
the prosecutor-either grand jurors, in the context of an

484 	State v. Kuznetsov
indictment, or a magistrate, in the context of an informa-
tion--determine that the state has probable cause to move
forward with that charge.
Subsection (6) of Article VII (Amended), section 5,
addresses the amendment of those accusatory instruments
and provides that the state may file an amended "indictment
or information" when a court rules that that instrument is
"defective in form." Although that text is permissive, this
court has long recognized that we must read it in conjunction
with subsections (3) to (5) of section 5 and that, when read
together, those provisions impose limits on the power of the
prosecutor. The constitutionally required roles of the grand
jury and the magistrate in felony cases operate as a check on
the power of the district attorney and serve a critical function
in protecting individual liberties. See Pachmayr, 344 Or at
495; State u. Burleson, 342 Or 697, 703, 160 P3d 624 (2007)
(discussing role of grand jury); see also State u. Freeland, 295
Or 367, 369, 667 P2d 509 (1983) (discussing role of magis-
trate). Thus, this court has held that, although Article VII
(Amended), section 5(6), permits district attorneys to file
amended accusatory instruments to correct defects that are
purely matters of form, the state must return to the grand
jury or a magistrate ifit wishes to make substantive amend-
ments to felony indictments or informations. State u. Wimber,
315 Or 103, 113, 843 P2d 424 (1992).
In this case, defendant asserts that Article VII
(Amended), section 5, also places constraints on the substan-
tive amendment of a misdemeanor information. Defendant
argues that those constraints precluded the state from seek-
ing, and the trial court from allowing, the amendment to the
information used to charge defendant. Defendant begins
with the premise that the state sought an amendment of sub-
stance and not of form. Amendments to those allegations
"that are essential to the charge" are considered matters of
substance; all "[o]ther nonessential allegations are matters of
form." Pachmayr, 344 Or at 489; see also Wimber, 315 Or at
114 ("A matter that is essential to show that an offense has
been committed is a matter of substance."). The state now
concedes, and we agree, that the mental state with which

Cite as 345 Or 479 (2008) 	485
defendant acted is a fact essential to the charge of fourth-
degree assault and, thus, an amendment to the allegation of
that fact is substantive in nature.
Defendant next argues that, unlike the subsections
that precede it, subsection (6) of Article VII (Amended), sec-
tion 5, does not state that it applies solely to crimes punish-
able as felonies and that, as a result, the state could seek, and
the court could permit, only amendments to the form of the
information. Defendant's argument overlooks, however, the
source 	of the 	constitutional 	constraints 	on 	substantive
amendments to informations. Those constraints do not flow
from subsection 5(6) alone, but also derive from the require-
ment of subsections 5(3) to (5) of Article VII (Amended) that a
grand jury or magistrate must authorize the filing of felony
charges. Because those subsections do not require that a
grand jury or magistrate authorize the filing of an original
information charging a misdemeanor, neither they, nor sub-
section 5(6), preclude substantive amendments to such an
information. We hold that there is no constitutional impedi-
ment to a district attorney filing, and a trial court allowing, a
substantive amendment to a misdemeanor information.
In reaching that same conclusion, the Court of
Appeals related the history of the adoption of Article VII
(Amended), section 5, which was amended to its current form
by voter initiative in 197 4. Before that amendment, Article
VII (Amended), section 5 (1973), provided that
"[n]o person shall be charged in any circuit court with the
commission of any crime or misdemeanor defined or made
punishable by any of the laws of this state, except upon
indictment found by a grand jury; * * * Provided further,
however, that if any person appear before any judge of the
circuit court and waive indictment, such person may be
charged in such court with any such crime or misdemeanor
on information filed by the district attorney."
(Emphases added.) The 1974 amendment removed all refer-
ences to misdemeanors, indicating that one of its purposes
was to free the state from the procedural strictures applicable
to felonies when charging misdemeanors. Defendant stresses
that, prior to the 1974 amendment, the term "information"
had been used to encompass both felony and misdemeanor

State v. Kuznetsov
accusatory instruments, and that subsection 5(6), as opposed
to the other paragraphs of section 5, continues the use of that
general term. However, that drafting peculiarity is not dis-
positive. Read without reference to subsections (3) to (5), sub-
section (6) does no more than grant the district attorney the
authority to file an amended information when a court rules
that the original information is defective in form. The history
of Article VII (Amended), section 5, reinforces our conclusion
that that provision does not preclude substantive amend-
ments of a misdemeanor information.
Defendant argues, in the alternative, that no law
affirmatively 	authorizes 	the 	court 	to 	allow 	substantive
amendments 	to 	a 	misdemeanor information. 	Defendant
raised this point for the first time at oral argument at the
Court of Appeals, and, considering the issue unpreserved,
that court declined to reach the merits of the argument.
Kuznetsov, 215 Or App at 543 n 4. ORAP 5.45(1) provides
that "[n]o matter claimed as error will be considered on
appeal unless the claim of error was preserved in the lower
court and is assigned as error in the opening brief in accor-
dance with this rule * * *."
Although 	we 	are 	sympathetic 	with 	the 	stance
adopted by the Court of Appeals, we also understand defen-
dant's perspective. Defendant's argument at trial was that
the state was precluded from amending the information to
charge a new crime. The state responded by invoking Article
VII (Amended), subsection 5(6), and argued that it was
"merely fixing a technical mistake." Consequently, when
defendant briefed his case before the Court of Appeals, he did
so under the assumption that the state would argue as it had
below-that the amendment in question was not substantive
and therefore constitutionally permissible. At the Court of
Appeals, however, the state changed its position by arguing
that 	subsection 	5(6) 	did 	not 	apply 	to 	misdemeanors.
Although the appellate rules permit reply briefs in narrow
circumstances, 1 it was not until oral argument that defen-
dant responded that, if the state were correct about the lim-
ited reach of section 5, then no affirmative authority sup-
ported the trial court's action. Although defendant could, and
1 ORAP 5.70(3)(a)(ii) provides that, "[e]xcept on request of the appellate court
or on motion of a party that demonstrates the need for a reply brief, reply briefs
shall not be submitted in" criminal cases.

Cite as 345 Or 4 79 (2008) 	487
perhaps should, have stated his complete argument in his
opening brief or at least have sought leave to file a reply brief,
the issue was introduced at the Court of Appeals and fully
briefed in our court. We therefore address defendant's argu-
ment for the benefit of bench and bar. See Outdoor Media
Dimensions Inc. v. State of Oregon, 331 Or 634, 659-60, 20
P3d 180 (2001) (to promote judicial efficiency, unpreserved
alternative ground for affirmance may be raised on appeal
when, among other considerations, record has been fully
developed); Shields v. Campbell, 277 Or 71, 77-78, 559 P2d
1275 (1977) (noting that guiding principle behind rules of
preservation is "not merely to promote form over substance
but to promote an efficient administration of justice").
In proceeding to the merits of defendant's argument,
we note that, absent some legislative or constitutional imped-
iment, courts possess inherent authority to issue those rul-
ings necessary to decide the issues before them. See, e.g.,
State v. Robbins, 345 Or 28, 34, 188 P3d 262 (2008) (recogniz-
ing that appellate courts' power to dismiss criminal appeal
when defendant has absconded predates statutory authority
to do so);Far West Landscaping, Inc. v. Modern Merchandising,
Inc., 287 Or 653, 658, 601 P2d 1237 (1979) (noting that "there
is no doubt but that under normal circumstances trial courts
have inherent authority to vacate or amend their judg-
ments"); McElwain v. Kabatoff, 275 Or 393, 395, 551P2d105
(1976) (affirming trial court's right to enjoin parties from
interviewing jurors after verdict has been reached). Although
we do not take issue with that principle, we need not rest our
decision on it in this instance because the Oregon legislature
has recognized that trial courts have authority to allow
amendments to accusatory instruments in misdemeanor
cases.
The legislature provides for two forms of accusatory
instruments that the state may use to charge misdemean-
ors-a criminal complaint and an information. The legisla-
ture has explicitly granted trial courts the authority to
amend criminal complaints. ORS 133.069(4) provides that a
"court may amend a complaint at its discretion." That statute
does not contain an express grant of authority for a trial court
to amend a misdemeanor information, but the existence of
that authority is implicit in other statutory provisions. First,

488 	State v. Kuznetsov
although the legislature refers to a complaint and an infor-
mation as two separate accusatory instruments, it provides
that they serve identical functions and requires that they
contain precisely the same allegations. ORS 131.005(3) (for
offenses not punishable as a felony, a complaint serves as a
basis for prosecution); ORS 131.005(9)(a) (for offenses not
punishable as a felony an information serves as the basis for
prosecution); ORS 133.007 (describing the "[s]ufficiency of
information or complaint"); ORS 133.015 (providing the
required "[c]ontents of information or complaint"). When
used to charge misdemeanors, the singular distinguishing
feature between the two instruments is that a complaint
must be "verified by the oath of a person and bear[] an
indorsement of acceptance by the district attorney," ORS
131.005(4), while an information must be "a written accusa-
tion by a district attorney." ORS 131.005(9). Second, the leg-
islature assumes that a trial court has authority to permit an
amendment to an information as well as to a complaint and
provides for the consequences should a court decline to exer-
cise that authority. ORS 135.680 provides that if, after allow-
ance of demurrer, "the court does not allow* * * an amended
complaint or information [to be] filed, the defendant, ifin cus-
tody, shall be discharged." (Emphasis added.)
While defendant acknowledges that Oregon statutes
contemplate judicial authority to permit amendments to
informations, he asserts that that authority must be limited
to amendments as to form. If an information is substantively
deficient, defendant argues, the state either must proceed on
the original information or file a new one. In defendant's
words, the state cannot "alter material elements of the
charged offense, type the word 'amended' across the top of the
instrument, and expect to be in the same position as if that
had been the allegation from the very beginning."
That argument requires the assumption that the
state would expect an amended information to have the same
legal effect as the original information. However, the state
"heartily agrees" with defendant that "[t]he effect of a sub-
stantive alteration * * * is to create what amounts to a new
information," and our view is 	consonant. 	The question
whether a court has authority to permit a substantive
amendment to a misdemeanor information is analytically

Cite as 345 Or 479 (2008) 	489
distinct from the question of the effect that the court must
give to that amended instrument. The state may seek to
amend an original information, rather than to refile it, but an
amended information does not necessarily possess all of the
legal attributes of the original.
To emphasize his point, defendant further assumes
that, 	for 	statute 	of limitations 	purposes, 	a 	substantive
amendment to an information would necessarily relate back
to the date that the original information was filed, and
argues from that assumption that substantive amendments
are prejudicial and prohibited. Defendant's premise is again
mistaken. While this court has not decided the issue, the gen-
eral rule in other jurisdictions is that an amendment of an
accusatory instrument will not relate back to the original for
statute oflimitations purposes if it substantively amends the
original charges. See, e.g., U. S. v. Schmick, 904 F2d 936, 940
(5th Cir 1990); U. S. v. Elliott, 849 F2d 554, 561 (11th Cir
1988); United States v. Sears, Roebuck & Co., Inc., 785 F2d
777, 778 (9th Cir), cert den, 479 US 988 (1986); U. S. v.
Friedman, 649 F2d 199, 204 (3d Cir 1981); State v. Almeda,
211 Conn 441, 	446, 560 A2d 389, 392 (1989); State v.
Chernotik, 671 NW2d 264, 268 (SD 2003); Benitez v. State,
111 Nev 1363, 1365, 904 P2d 1036, 1037 (1995) (all so
holding).
In this case, the trial court treated the amended
information as equivalent to a newly filed information and
not as one that related back to the original filing date. Nev-
ertheless, 	the 	court 	determined 	that 	the 	filing 	of the
amended information was timely because the limitations
period had been tolled by defendant's unauthorized depar-
ture. The trial court correctly analyzed, as distinct inquiries,
its authority to permit amendment of the information and
the legal consequences of its exercise of that authority. In
doing 	so, 	the 	trial 	court 	demonstrated 	that 	the 	label
"amended" across the top of the information did not necessar-
ily place the parties in the same position that they would
have occupied had the new allegations been present at the
onset of the case. Defendant's argument does not persuade us
that the court's authority to permit amendments to misde-
meanor informations is limited to amendments to form.

490 	State v. Kuznetsov
In sum, we conclude that Article VII (Amended), sec-
tion 5, of the Oregon Constitution did not prohibit the trial
court from granting-and that the trial court possessed
authority to grant-the substantive amendment sought by
the state in this case.
The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.