Opinion
94C-20910; CA A86892
Argued and submitted March 5, reversed and remanded March 27, petition for review denied May 28, 1996 ( 323 Or. 265)
Appeal from Circuit Court, Marion County.
Paul J. Lipscomb, Judge.
Timothy Sylwester, Assistant Attorney General, argued the cause for appellant. On the brief were Theodore R. Kulongoski, Attorney General, Virginia L. Linder, Solicitor General, and Ann Kelley, Assistant Attorney General.
Todd McCann argued the cause for respondent. On the brief was Burt, Swanson, Lathen, Alexander, McCann Smith.
Before Riggs, Presiding Judge, and Landau and Leeson, Judges.
LEESON, J.
Reversed and remanded.
Defendant was charged with two counts of theft and five counts of official misconduct. ORS 164.055; ORS 162.415. The state appeals from an order that sustained defendant's demurrer to the indictments charging him with official misconduct. We reverse and remand.
ORS 162.415 provides in part:
"(1) A public servant commits the crime of official misconduct in the first degree if with intent to obtain a benefit or to harm another:
"* * * * *
"(b) The public servant knowingly performs an act constituting an unauthorized exercise in official duties."
The indictment alleged that defendant, "being a public servant, to-wit: [A] Marion County Sheriff's Office Deputy, did then and there unlawfully and knowingly perform an act, to-wit: worked on a private job while on duty as a Sheriff's Deputy, which act constituted an unauthorized exercise of his official duties, with intent to obtain a benefit, to-wit: financial gain."
Each of the five counts of the indictment was identical, with the exception of the dates alleged.
Defendant's demurrer claims that the indictment fails to state facts constituting a crime. ORS 135.630(4). The essence of his argument is that the facts on which he expects the state to rely at trial are insufficient to prove the crime charged.
In this case, the allegations of the indictment mirror the language of ORS 162.415(1)(b). That is sufficient to state an offense. State v. Reed, 116 Or. App. 58, 59, 840 P.2d 723 (1992). Only if an accused can admit the truth of every allegation of fact in an indictment and still be innocent of a crime, is the indictment insufficient. State v. Anderson, 242 Or. 457, 462, 410 P.2d 230 (1966). Defendant's argument about what he expects the state to present at trial is premature and does not provide a basis for sustaining a demurrer. State v. Kurtz, 46 Or. App. 617, 624, 612 P.2d 749, rev den 289 Or. 588 (1980). Because of this disposition, we need not address the state's second assignment of error.
Reversed and remanded.