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FILED: November 07, 2012
IN THE COURT OF APPEALS OF THE STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,

v.

TIMOTHY MICHAEL HANSEN,
Defendant-Appellant.

Yamhill County Circuit Court
CR080257

A143798

Ronald W. Stone, Judge.
Submitted on March 22, 2012.
Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of

Public Defense Services, filed the brief for appellant.

John R. Kroger, Attorney General, Mary H. Williams, Solicitor General, and Doug M.
Petrina, Senior Assistant Attorney General, filed the brief for respondent.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
NAKAMOTO, J.
Reversed.

1 NAKAMOTO, J. 2 Defendant was convicted of hindering prosecution, ORS 162.325, and 3 challenges the trial court's denial of a motion for judgment of acquittal because the state 4 did not prove the allegations of the indictment.  The indictment alleged that defendant 5 prevented the apprehension of a known felon, when the statute requires the state to prove 6 that defendant prevented anyone from performing an act which might aid in the 7 apprehension of a known felon.  Defendant contends that the trial court should have 8 granted his motion for a judgment of acquittal because of the variance between the 9 indictment and evidence at trial.1 For the following reasons, we reverse.
10 When reviewing a trial court's denial of a motion for a judgment of 11 acquittal, we view the evidence in the light most favorable to the state to determine 12 whether a rational trier of fact could have found the essential elements of the crime 13 beyond a reasonable doubt.  State v. Cunningham, 320 Or 47, 63, 880 P2d 431 (1994), 14 cert den, 514 US 1005 (1995).  The Yamhill County Sheriff's Office received a call that 15 Shane Culp, for whom the police had a felony arrest warrant, was seen entering a house 16 owned by Steven Hyder.  Culp had a history of evading and committing violence against 17 police. Hyder's house had been known to contain firearms. Deputies Brodeur, Donahoo,
Defendant also assigns error to the trial court giving an instruction on an element  
not included in the indictment, an issue unpreserved for appeal, State v. Alonzo, 249 Or  
App 149, 150-51, 274 P3d 889, rev den, 352 Or 377 (2012), as well as to the court  
admitting into evidence statements defendant made to police and allowing the jury to  
convict on a nonunanimous verdict.  In light of our disposition of defendant's first  
assignment of error, we decline to address his remaining assignments.  

1  and Ramsey responded to the call and formulated a plan to apprehend Culp.  Ramsey  
2  covered the back of the house that the deputies believed to be Hyder's while Brodeur and  
3  Donahoo approached the house at the front door.  At first, Brodeur and Donahoo knocked  
4  on Hyder's neighbor's door and received no response.  As the officers discussed whether  
5  they had the correct house, a man walked out of Hyder's house.  Donahoo recognized the  
6  man as Culp.  Culp yelled something, threw his hands in the air, and ran back inside the  
7  house. The officers went towards Hyder's house, and Donahoo yelled back asking Culp  
8  to come out and talk to them.  
9  As the officers approached Hyder's door, defendant's girlfriend, Withnell,  
10  came out to meet them.  Brodeur told Withnell that they were looking for Culp and had  
11  seen him walk inside.  Withnell said Culp was not in the house. After Brodeur described  
12  what Culp looked like to Withnell, she said that she knows Culp, but he was not in the  
13  house. Brodeur then asked whether anybody else was in the house, and Withnell replied  
14  that defendant was in the house. Brodeur asked Withnell to tell defendant to come  
15  outside, and he did.  
16  When both Withnell and defendant were on the porch, Brodeur told both of  
17  them that he saw Culp go into the house and asked them if they had seen Culp go inside  
18  the house. They both replied no and said that they were watching a movie in the living  
19  room.  Brodeur told them that Culp had a felony warrant and that they would be  
20  hindering prosecution if they did not say he was inside.  Donahoo also told them that they  
21  would be hindering prosecution if they denied that Culp was in the house.  Again,  

1  defendant and Withnell said that Culp was not in the house.  At some point, Sergeant  
2  Ludwig arrived and admonished defendant and Withnell for hindering prosecution if they  
3  denied that Culp was in the house.  They both said that Culp was not inside.  
4  Brodeur called for backup, and at least two additional officers and a canine  
5  unit arrived.  Two officers and a police dog entered the house, found Culp hiding in the  
6  bedroom, and arrested him.  The house's floor plan required Culp to pass through the  
7  living room, where defendant and Withnell were watching television, to get to the  
8  bedroom.  Defendant and Withnell were arrested and charged with hindering prosecution.  
9  The indictment alleged that defendant committed hindering prosecution.  
10  "The defendants, on or about May 19, 2008, in Yamhill County,  
11  Oregon, did unlawfully, with intent to hinder the apprehension [of] Shane  
12  Culp, a person who had committed a crime punishable as a felony, prevent,  
13  by means of deception, the discovery or apprehension of said Shane Culp;  
14  contrary to statute and against the peace and dignity of the State of  
15  Oregon."  
16  (Emphasis added.)  The text of the indictment differed from the statutory requirements of  
17  hindering prosecution under ORS 162.325.  That statute provides, in relevant part:  
18  "(1) A person commits the crime of hindering prosecution if, with  
19  intent to hinder the apprehension * * * of a person who has committed a  
20  crime punishable as a felony * * * the person:  
21  "* * * * *  
22  "(d) Prevents or obstructs, by means of * * * deception, anyone  
23  from performing an act which might aid in the discovery or apprehension of  
24  such person[.]"  
25  ORS 162.325 (emphasis added). The indictment thus omitted the italicized portion of the  
26  statute defining the crime.  

1  At trial, Brodeur and Donahoo testified to the facts stated above.  When  
2  asked whether defendant's and Withnell's statements prevented officers from  
3  apprehending Culp, Brodeur testified that it did initially because "it would put doubt in  
4  our mind that who we actually saw[,] we saw."  Because Brodeur had never seen Culp  
5  before, he had to reconcile what defendant said with Donahoo's identification of Culp.  
6  Brodeur had to confirm that the man Donahoo had seen run into the house was Culp.  
7  Donahoo testified that he had been "80 percent" certain that he saw Culp enter the house,  
8  and their deception prevented the officers from apprehending Culp.  According to  
9  Brodeur, had defendant and Withnell been forthcoming and told the officers where Culp  
10  was in the house, or whether anybody else was in the house, they would not have delayed  
11  the process of apprehending Culp.  Brodeur explained that officer safety was a concern,  
12  but gathering all the information that he needed made it a lot easier to safely enter the  
13  house.  
14  After the state rested, defendant and Withnell moved for a judgment of  
15  acquittal, arguing that the state failed to prove that defendant had prevented and not  
16  delayed Culp's apprehension.  The trial court denied defendant's motion, and, ultimately,  
17  a jury convicted him of hindering prosecution.  
18  On appeal, defendant argues that the trial court erred in denying his motion  
19  for a judgment of acquittal in two ways: there was either a material variance or a  
20  prejudicial variance between the indictment and the proof at trial.  "It is a basic  
21  component of a defendant's fundamental right to due process that a court may not find  

1  him guilty of a crime for which he has not received notice or an opportunity to prepare a  
2  defense."  State v. Barrie, 227 Or App 378, 381, 206 P3d 256 (2009).  
3  The indictment alleged that defendant "prevent[ed], by means of deception,  
4  the discovery or apprehension of said Shane Culp." But in defendant's view, the state  
5  merely proved at trial, consistently with ORS 162.325 and the state's requested jury  
6  instruction, which the trial court gave, that defendant "prevent[ed], by means of * * *  
7  deception, anyone from performing an act which might aid in the discovery or  
8  apprehension of [a person who has committed a felony.]"  (Emphasis added.)  That  
9  variance, in defendant's view, was both material and prejudiced him because the state was  
10  allowed to convict him on a different theory of criminal liability than the one charged.  In  
11  the alternative, defendant asserts that the state did not offer sufficient evidence that  
12  defendant prevented the discovery or apprehension of Culp, as alleged in the indictment.  
13  The state does not address defendant's variance argument, at least not  
14  directly.  Rather, it responds that, viewed in the light most favorable to the state, the  
15  evidence was sufficient for the jury to find, consistently with the allegations in the  
16  indictment, that defendant's deception delayed the police from entering the house, thereby  
17  preventing--albeit temporarily--the apprehension of Culp.  We agree with defendant that  
18  he suffered prejudice due to the variance and do not reach defendant's argument that the  
19  variance was material or his alternative argument that the evidence was insufficient for  
20  conviction.  
21  Whether a variance between the allegation in the charging instrument and  

1  the state's evidence at trial warrants reversal depends on whether that variance was either  
2  material or prejudicial. State v. Newman, 179 Or App 1, 7, 39 P3d 874 (2002).  As to  
3  prejudice, we must determine whether "on the facts of the particular case, the defendant  
4  had suffered prejudice to his defense by the variance between the allegation and the  
5  proof."  Id. (citing State v. Long, 320 Or 361, 885 P2d 696 (1994), cert den, 514 US 1087  
6  (1995)) (internal quotation marks and footnote omitted).  If the answer to that question is  
7  affirmative, the motion for judgment of acquittal should be granted.  Newman, 179 Or  
8  App at 11; accord State v. Boitz, 236 Or App 350, 356, 236 P3d 766 (2010). Whether a  
9  variance is prejudicial depends on the specific theories under which a case is argued.  
10  Boitz, 236 Or App at 356 (emphasis in original).  If the defendant would need to develop  
11  a different argument to contend with the variance, the defendant would be prejudiced.  Id.  
12  Here, the variance altered defendant's argument at trial.  In at least partial  
13  accordance with ORS 162.325(1)(d), the indictment alleged that defendant did "prevent  
14  by means of deception, the discovery or apprehension of * * * Culp."  The Oregon  
15  Revised Statutes do not define "prevent."  Generally, "words of common usage typically  
16  should be given their plain, natural, and ordinary meaning."  PGE v. Bureau of Labor and  
17  Industries, 317 Or 606, 611, 859 P2d 1143 (1993).  The common meaning of "prevent" is  
18  "3: to deprive of power or hope of acting, operating, or succeeding in a  
19  purpose : FRUSTRATE, CIRCUMVENT * * * 4: to keep from happening or  
20  existing esp. by precautionary measures : hinder the progress, appearance,  
21  or fulfillment of : make impossible through advance provisions * * * 5: to  
22  hold or keep back (one about to act) : HINDER, STOP * * * often used with  
23  from."  
24  Webster's Third New Int'l Dictionary 1798 (unabridged ed 2002) (emphasis in original).  

1  "Prevent" implies that a person does some act to stop an occurrence from happening.  
2  Although the state argues that "prevent" as used in the statute and in the  
3  indictment means "temporarily stop," that proffered definition does not comport with the  
4  text of ORS 162.325(1)(d), which makes it a crime to "prevent or obstruct" someone  
5  from performing an act that might aid in the apprehension of a felon.  (Emphasis added.)  
6  The dictionary definition of "obstruct" suggests a meaning different from "prevent"-

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