No. 927 October 7, 2026 433
IN THE COURT OF APPEALS OF THE
STATE OF OREGON
STATE OF OREGON,
Plaintiff-Respondent,
v.
JUSTIN LEE TEEMAN,
Defendant-Appellant.
Harney County Circuit Court
23CR41259, 24CR04237, 22CR56140;
A184806 (Control), A184807, A184808
Robert S. Raschio, Judge.
Argued and submitted September 8, 2026.
Stacy Du Clos, Deputy Public Defender, argued the
cause for appellant. On the briefs were Ernest G. Lannet,
Chief Defender, Criminal Appellate Section, and Francis C.
Gieringer, Deputy Public Defender, Oregon Public Defense
Commission.
Robert M. Wilsey, Assistant Attorney General, argued the
cause for respondent. Also on the brief were Dan Rayfield,
Attorney General, and Benjamin Gutman, Interim Deputy
Attorney General.
Before Aoyagi, Presiding Judge, Kamins, Judge, and
Pagán, Judge.
AOYAGI, P. J.
434 State v. Teeman
Cite as 353 Or App 433 (2026) 435
AOYAGI, P. J.
This is a consolidated criminal appeal. In Case No.
23CR41259, after a trial to the court, defendant was convicted of harassment constituting domestic violence (Count
2), two counts of second-degree assault (Counts 8 and 9),
felony fourth-degree assault (Count 12), and harassment
(Count 13). In Case No. 24CR04237, after pleading no contest, defendant was convicted of second-degree burglary and first-degree theft. In Case No. 22CR56140, the trial court
revoked defendant’s probation. Most of the issues on appeal relate to Case No. 23CR41259. Defendant raises six assignments of error in that case, claiming that the trial court
erred by: (1) not granting a judgment of acquittal on Count 8; (2) relying on a material variance to find guilt on Count 9; (3) alternatively, failing to merge the verdicts on Counts 8 and 9; (4) not granting a judgment of acquittal on Count
10, third-degree assault, for which the guilty verdict was
merged with Count 9; (5) entering a conviction for harassment “constituting domestic violence” on Count 2; and (6)
imposing per diem fees in the judgment. Defendant also
assigns error to the imposition of per diem fees in the judgment in Case No. 24CR04237.
As explained below, we conclude that the trial court
erred with respect to Counts 2, 8, 9, and 10 in Case No.
23CR41259, and we accept as well-taken the state’s concession regarding per diem fees in Case No. 24CR04237. That
leads us to reverse the conviction on Count 2 and remand for entry of a conviction for harassment, reverse the convictions on Counts 8 and 9, reverse the entry of a guilty verdict on Count 10, and remand for resentencing in both cases. We
affirm the judgment in Case No. 22CR56140, as defendant
has not assigned error to any rulings in that case.
I. SERIOUS PHYSICAL INJURY (COUNT 8)
In his first assignment of error, defendant argues
that the trial court erred in denying his legal challenge to the sufficiency of the evidence to prove Count 8, seconddegree assault, specifically the “serious physical injury”
element. He preserved that issue by challenging the legal
sufficiency of the evidence in closing argument to the trial 436 State v. Teeman
court sitting as factfinder, which was functionally equivalent to moving for a judgment of acquittal. State v. GonzalezValenzuela, 358 Or 451, 454 n 1, 365 P3d 116 (2015). Our
task on review is therefore “to determine whether, viewing
the evidence in the light most favorable to the state and
accepting reasonable inferences and credibility determinations, a rational factfinder could have found the elements
of the crime beyond a reasonable doubt.” State v. LujanoRosales, 338 Or App 531, 533-34, 566 P3d 640, rev den, 374
Or 372 (2025).
To prove Count 8 as charged in the indictment, the
state had to prove that defendant knowingly caused serious
physical injury to the victim, S. See ORS 163.175(1)(a) (one way to commit second-degree assault is to “[i]ntentionally
or knowingly cause[ ] serious physical injury to another”). “Serious physical injury” in this context means “physical
injury which creates a substantial risk of death or which
causes serious and protracted disfigurement, protracted
impairment of health or protracted loss or impairment of
the function of any bodily organ.” ORS 161.015(8); see ORS
161.015(7) (defining “[p]hysical injury” to mean “impairment of physical condition or substantial pain”).
At trial, there was evidence that defendant struck
S in the face with a firearm or BB gun. When S went to
the hospital, the skin around his left eye was dark, purple, and swollen. There was no medical testimony regarding S’s
injuries, but S testified that he “had a fractured eye on [his] temple more or less.” Two photographs were admitted into
evidence, which S identified as depicting his “left eye fracture.” Exhibit 5, which appears to be the photograph taken
on the night of the incident, shows S with both eyes closed and a deep purple bruise on his left eyelid and below his left eye. Exhibit 6, which appears to be the photograph taken
several days later, shows S with both eyes open, substantially lighter bruising around his left eye, and a moderately bloodshot left eye. There was no evidence at trial regarding pain, vision loss, ongoing symptoms, or recovery time.
The parties disagree as to whether the evidence
was legally sufficient to prove that S suffered “serious physical injury.” Again, that term is statutorily defined to mean Cite as 353 Or App 433 (2026) 437
“physical injury which creates a substantial risk of death
or which causes serious and protracted disfigurement, protracted impairment of health or protracted loss or impairment of the function of any bodily organ.” ORS 161.015(8). It is undisputed that the evidence was insufficient to prove a substantial risk of death. The question is whether it was sufficient to meet one of the alternative definitions. The state contends that it was, arguing that, based on the inherent
nature of a bone fracture, the photographs in evidence, and the potential impact of an eye injury on someone’s vision,
a rational factfinder could find that S suffered protracted impairment of his health or protracted impairment of the
function of a bodily organ (his eye).
Although there is no hard and fast rule as to how
long impairment from an injury must last to be deemed “protracted,” we have previously observed that assault-related
statutes identify three categories of physical injury in temporal terms—“temporary,” “prolonged,” and “protracted”—
with each category describing a progressively longer period of time. State v. Stone, 326 Or App 200, 211, 532 P3d 90,
opinion adh’d to as modified on recons, 328 Or App 203, 536 P3d 1094 (2023). In Stone, the complainant suffered a concussion as the result of an assault. Id. at 203-04. We held that the evidence was legally insufficient to prove “protracted” impairment of the victim’s health as a result of the concussion, where there was evidence that he “had some concussive symptoms for up to three months,” but no evidence
“as to the frequency or severity of symptoms” or “how they
changed over time,” making it “impossible to know how long
[his] ‘health’ was impaired.” Id. at 211-12 (emphasis in original). By contrast, in State v. Britt, 335 Or App 91, 101, 557 P3d 524 (2024), rev den, 373 Or 282 (2025), the evidence was sufficient to prove “protracted” impairment of the victim’s health, where his broken ribs took three months to heal and caused pain that affected his sleep for seven to eight months, and he had headaches for four months after the assault.
This case is more like Stone, in that the state failed
to put forward sufficient evidence to establish “protracted” impairment of S’s health, even if it might have been able
to do so had it tried. Viewed in the light most favorable to 438 State v. Teeman
the state, the evidence was sufficient to establish that the assault caused an orbital bone fracture—on that point, we
agree with the state and not defendant. The photographs
admitted into evidence also show substantial bruising to S’s left eye area and a moderately bloodshot eye. Even if it is reasonable to infer from the foregoing evidence that S’s health was impaired for some period of time, it cannot be reasonably inferred on this record that the impairment was protracted. There is simply no evidence of S’s physical condition in the weeks and months following the assault—no evidence as to
the painfulness of the fracture, how long it took to heal, the painfulness of the bruising, how long it took to heal, or how long the injury otherwise affected S’s health. There is also no evidence that the injury ever affected S’s vision.
We therefore conclude that the trial court erred
by not granting a judgment of acquittal on second-degree
assault, Count 8. We reverse the conviction on Count 8.1
II. MATERIAL VARIANCE (COUNT 9)
In his second assignment of error, defendant challenges his conviction on Count 9, second-degree assault, an alternative theory of criminal liability for the same conduct underlying Count 8.
A. Procedural Facts
Defendant was charged in Count 9 with having
unlawfully and knowingly caused physical injury to S “by
means of a deadly weapon.” See ORS 163.175(1)(b) (one way
to commit second-degree assault is to “[i]ntentionally or
knowingly cause[ ] physical injury to another by means of
a deadly or dangerous weapon”). A “deadly weapon” is “any
instrument, article or substance specifically designed for
and presently capable of causing death or serious physical
injury.” ORS 161.015(2).
The state’s theory was that defendant assaulted S
with a deadly weapon, specifically by striking S in the face
1
Normally, we would direct entry of a guilty verdict for fourth-degree assault, because the state did prove the lesser included offense. The parties agreed at oral argument, however, that, in this particular case, given Count 12, a straight reversal is more appropriate. Solely for purposes of this appeal, we accept their agreement as to the disposition on Count 8.
Cite as 353 Or App 433 (2026) 439
with a 9 mm pistol hard enough to break his orbital bone (in addition to punching and kicking him). At trial, defendant
admitted to striking S but insisted that he had used only his closed fist. He denied having a firearm during the incident and put on evidence that no firearms were found in a search of his home. He testified that he did have a realistic-looking BB gun with him during the incident, but he claimed that
it was inside a fanny pack and that he never took it out or used it. Because it is relevant context for later discussion, we note that defendant was separately charged in Count 3
with second-degree assault of his girlfriend, R, based on his allegedly striking her with the same “deadly weapon” in a
separate incident the same day.
In closing argument, the prosecutor argued that
the state had proved that defendant assaulted both R and
S with a “deadly weapon,” specifically a 9 mm firearm that
defendant had been seen carrying on many occasions. The
prosecutor asserted that it did not matter for purposes of
those counts that defendant had struck R and S with the
pistol, rather than shooting them, because “[t]he case law
is pretty clear” that it is second-degree assault regardless of how the firearm is used to cause injury. For her part,
defense counsel argued in closing for acquittal on all counts requiring use of a “deadly weapon,” including Counts 3 and
9. As to Count 3, she argued that, at most, the court should find defendant to have struck R with a BB gun, which “is
not a deadly weapon,” is “not a firearm,” and is “not even
a pistol.” As to Count 9, she urged the trial court to credit defendant’s testimony that he struck S with a closed fist, not a firearm or a BB gun. Because multiple counts involved a
“deadly weapon” allegation, defense counsel reiterated several times in closing that a BB gun is “not a deadly weapon” and that defendant did not use a deadly weapon.
In rebuttal, the prosecutor argued that the evidence
corroborated that defendant used a 9 mm firearm, not a BB
gun, in both the incident with R and the incident with S.
The prosecutor was specifically arguing for a guilty finding on Count 3, the second-degree assault of R, when the court
interrupted to ask whether “it matter[s] if it’s a pistol or a BB gun for that particular charge of Assault in the Second
440 State v. Teeman
Degree?” The prosecutor responded that the court was “correct in the sense that whether it be a pistol or a BB gun,
either can be construed as a deadly weapon,” and, although
he would need some time to find it, there was a case holding that “boots can be viewed as a deadly weapon.” The court
stated, “Dangerous or deadly.” The prosecutor responded,
“Dangerous or deadly. I would have to find that particular
one, but it was essentially how the particular item was used.”
Apologizing for interrupting closing, the court
asked defense counsel if she wanted to answer whether it
mattered whether defendant hit S with a pistol or a BB gun:
“I didn’t intend to ask, but it’s been bugging me, and
I need to think it through. Does it matter—I mean, if it’s
a—if the individual is hit with a BB gun or hit with a pistol, does it matter for purposes of Assault in the Second
Degree?
“I know you’re denying that he was hitting her with
anything, but does it matter? That one would be perceived
as a deadly weapon, one potentially a dangerous weapon.
It’s alleged by the Grand Jury to be a deadly weapon, but I
don’t know if the instrumentality question really matters.
“If you hit somebody with something and it causes
an injury—”
Defense counsel responded that her answer was
“yes and no” because “it depends on the extent of the injury.” She continued that she “would agree that it doesn’t necessarily have to be a pistol, it can be a stiletto. You know, somebody puts a stiletto through your brain, that stiletto
just became—.” Distracted by an aside in which she asked
the judge if he knew what a stiletto was and he said that he did, defense counsel did not finish that sentence but, in context, was making the point that, if someone drives a stiletto into your brain, the stiletto becomes a deadly weapon. She
concluded, “So I think anything can be, depending on how
it’s used and the extent of the injury. That is my answer.” The court thanked the parties and directed the prosecutor
to continue with rebuttal closing. When closing finished
around 4:30 p.m., the court told the parties that it needed time to think and adjourned for the day.
Cite as 353 Or App 433 (2026) 441
The next morning, the court gave its verdict. It
first addressed the counts involving R, including acquitting defendant on Count 3 due to disbelieving certain testimony
of R. The court then addressed the counts involving S, stating that it generally found S credible, but thought that S
might be confused about some aspects of the incident, and
that it was not convinced beyond a reasonable doubt that
defendant hit S with a pistol, given that a pistol was never found. The court expressly credited S’s testimony that he
was hit and “saw a firearm” but expressed doubt whether it
was actually a pistol or a BB gun. When it got to Count 9,
the court began by stating that it struggled with that count. The court briefly commented on the evidence, including its
uncertainty whether defendant hit S with a pistol or a BB
gun. The court “note[d] for the record” that, whether it was a firearm or a BB gun, it “was used as a dangerous weapon”
and “wasn’t used as a deadly weapon.” The court reiterated
that point again later, explaining that, even if it was a pistol, it “was used as a dangerous weapon” and “was never
used as a deadly weapon” because it was never fired at S.
(“In other words, he never shot a firearm at him.”)
The court immediately acknowledged that finding
that defendant assaulted S with a dangerous weapon, not
a deadly weapon, was a variance from the indictment. Over
two transcript pages, however, it explained that it had concluded that, under State v. Pachmayr, 344 Or 482, 185 P3d
1103 (2008), and State v. Samuel, 289 Or App 618, 410 P3d
275 (2017), rev den, 363 Or 104 (2018), the variance was permissible as to Counts 9 and 10, because it did not change
the essential nature of the indictment and did not prejudice defendant. The court extrapolated,
“[T]he question of physical injury being caused by a
weapon, deadly or dangerous, was properly laid out for the
Defendant, and it is not a material deviation in the way that
the discovery defined what had happened in these events,
and it is not prejudicial to the Defendant that he either hit
him with a BB gun or hit him with a pistol. It makes no
difference because he was using it as a club, which [State v.
Harris, 174 Or App 105, 25 P3d 404 (2001),] has that same
example * * * where the Defendant uses a gun as a club. It
doesn’t allow for the firearm enhancement, but it’s still a
weapon.
442 State v. Teeman
“So I’m saying that I think the deadly weapon vs. dangerous weapon is not a material element because it does not
prejudice the Defendant in any way. It doesn’t change the
essential nature of the indictment, and as a result, based
on [S’s] testimony, I’m going to find that he was, in fact,
struck with a weapon, causing him physical injury. I’m
going to find him guilty on Count 9. I’m going to find him
guilty on Count 10.”
Neither party made an objection during the court’s speaking verdict.
Defendant argues on appeal that the trial court
was wrong to conclude that the variance between “deadly
weapon” and “dangerous weapon” was permissible, and he
challenges his conviction on Count 9 on that basis. The state does not defend the court’s ruling on the merits. That is, it does not contend that the variance was immaterial. Instead, it asserts that defendant invited the error or, alternatively, that only plain-error review is available because the error is unpreserved and that we should not exercise our discretion
to correct any plain error. See ORAP 5.45(1) (recognizing
that it is discretionary whether to correct a “plain” error). Defendant responds that he did not invite the error and
that the purposes of preservation were adequately served,
given the trial court’s open discussion and consideration of the variance issue. He alternatively requests plain-error
review and asks us to exercise our discretion to correct a
plain error.
B. Defendant did not invite the error.
We begin with the state’s invited-error argument,
which is based on defendant’s answer to the court’s question during the state’s rebuttal closing argument. “Under the
invited error doctrine, a party who was actively instrumental in bringing about an alleged error cannot be heard to
complain, and the case ought not to be reversed because of
it.” State v. Brown, 272 Or App 321, 324, 355 P3d 129 (2015) (internal quotation marks omitted). “For example, where a
party affirmatively misstates the law and the trial court
relies on that misstatement, that party may not then appeal the resulting decision.” Id. (internal quotation marks and
brackets omitted). “The purpose of the doctrine is to ensure Cite as 353 Or App 433 (2026) 443
that parties do not blame the court for their intentional or strategic trial choices that later prove unwise and then, to the trial court’s surprise, use the error that they invited to obtain a new trial.” Id. (internal quotation marks omitted).
Here, we are unpersuaded that defendant was
actively instrumental in bringing about the alleged error.
The alleged error is the court finding defendant guilty on
Count 9 based on a finding that he assaulted S with a dangerous weapon, when the indictment alleged that he assaulted
S with a deadly weapon. Defense counsel may have invited
an error, but it was not that error.
When the court interrupted rebuttal closing to ask
whether it would matter for Count 3—and by implicit extension, Counts 9 and 10—whether defendant used a pistol or
a BB gun, the prosecutor did not understand the court to
be asking about a potential variance from the indictment.
The prosecutor, who had argued unwaveringly that defendant committed the assault with a deadly weapon (exactly
as alleged in the indictment), understood the court to be
asking whether a BB gun could be a deadly weapon. He told
the court that it was “correct” that “whether it be a pistol or a BB gun, either can be construed as a deadly weapon,”
and he referenced a case about boots being used as deadly
weapons. The court then asked defense counsel for her position on whether it mattered whether defendant used a pistol or BB gun. She answered “yes and no” because “it depends
on the extent of the injury.” She agreed with the prosecutor that “it doesn’t necessarily have to be a pistol, it can be a stiletto,” and suggested that, if “somebody puts a stiletto through your brain,” they have made the stiletto a deadly
weapon. That is, anything can be a deadly weapon, “depending on how it’s used and the extent of the injury. That is my answer.”
Both the prosecutor and defense counsel were mistaken in asserting that anything can be a deadly weapon
depending how it is used, as that principle applies to dangerous weapons, not deadly weapons. See ORS 161.015(1)
(defining “dangerous weapon” to mean “any weapon, device,
instrument, material or substance which under the circumstances in which it is used, attempted to be used or threatened 444 State v. Teeman
to be used, is readily capable of causing death or serious
physical injury” (emphasis added)); State v. Brown, 316 Or
App 808, 811, 502 P3d 1199, rev den, 369 Or 705 (2022) (shoe was used as a dangerous weapon); State v. Bell, 96 Or App
74, 78, 771 P2d 305, rev den, 308 Or 142 (1989) (cowboy boots were used as a dangerous weapon). Relatedly, “the extent of the injury” inflicted may be indirectly relevant to whether something was used as a dangerous weapon, but it is not
relevant to whether something is a deadly weapon.
The trial court did not rely on the parties’ shared
mistaken position on deadly weapons, however, when it
reached its verdict. Had the trial court found that defendant used a BB gun in a way that made it a deadly weapon, that
almost certainly would have been error, see ORS 161.015(2)
(a “deadly weapon” must be “specifically designed for * * * causing death or serious physical injury”), and it would have been invited error. But the court did not do that. Instead, it did its own research, which led it to reject the state’s entire theory of the case as to the “deadly weapon” element of several counts. The state’s theory of the case was that
defendant used a pistol and that a pistol is a deadly weapon regardless of how it is used. Defendant did not dispute that a pistol is always a deadly weapon, regardless of how it used, and sought only to persuade the court sitting as factfinder that he did not use a pistol. The court then did something in its verdict that almost certainly caught both parties by surprise—it decided that it did not matter whether defendant
used a pistol or a BB gun because even a pistol would be only a dangerous weapon in these circumstances, where it was
used to hit S, not shoot him.
On appeal, at oral argument, defendant asserted
that that is legally incorrect—that a pistol is always a deadly weapon, even if it is sometimes also a dangerous weapon.
But, whether or not the trial court was correct on that point, that reasoning was what led it down the particular path it
took, including into variance research, which culminated in the court concluding that it was a permissible variance to
find defendant guilty based on his assaulting S with a dangerous weapon, even though the indictment alleged a deadly
weapon.
Cite as 353 Or App 433 (2026) 445
We do not see how defendant can be said to have
invited that error. Like the prosecutor, defense counsel incorrectly suggested that a BB gun could be a deadly weapon
depending on how it was used, such that it might not matter whether defendant used a pistol or a BB gun. She never
suggested, however, that the alleged pistol was not a deadly weapon or that the difference between a deadly weapon
and dangerous weapon did not matter. It is important to
keep in mind that the prosecutor had never once suggested
that defendant could be found guilty even if he used only a dangerous weapon, and the parties would have understood
the court’s question in the context of the case that had been tried. To the extent there was any misalignment between
what the court was thinking when it asked its unplanned
question and the parties’ answers, that may have made
their answers unhelpful, but defendant did not invite the
error now alleged.
C. The issue is adequately preserved for appeal.
The next question is whether the claim of error
is adequately preserved for appeal, or conversely, whether
we are limited to plain-error review. As a general rule, we will not consider a claim of error that was not preserved in the trial court, except for discretionary plain-error review. State v. Wyatt, 331 Or 335, 341, 15 P3d 22 (2000); ORAP
5.45(1). A party typically preserves an issue for appeal by providing the trial court “with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted.” Wyatt, 331 Or at 343. At times, however, an
issue may be adequately preserved for appeal even without
an objection having been made in the trial court.
“[A] party’s failure to assert error or object below is
not dispositive of the preservation analysis, at least in circumstances where the issue was clearly raised and ruled
upon, where the opposing party had an opportunity to be
heard on the issue, and where there is no reason to believe that the record before the trial court would have developed materially differently if the appellant had been more vocal.” State v. Roberts, 291 Or App 124, 131, 418 P3d 41 (2018).
446 State v. Teeman
That approach fits with the principle that, ultimately, “[t]he touchstone for determining whether a contention is adequately preserved is whether the policies that underlie the preservation requirement—giving the opposing party a fair
opportunity to respond, fostering appellate review through
full development of the record, and giving the trial court the opportunity to fully consider and rule in the first instance— have been served in a particular case.” State v. Ames, 298 Or App 227, 232, 445 P3d 928 (2019) (citing State v. Parkins, 346 Or 333, 340-41, 211 P3d 262 (2009), and Peeples v. Lampert, 345 Or 209, 219-21, 191 P3d 637 (2008)); see also State ex rel Juv. Dept. v. Tyree, 177 Or App 187, 190, 33 P3d 729 (2001) (“In determining whether an assignment of error is preserved,
the most significant question is whether the trial court had a realistic opportunity to make the right decision.”).
In State v. Arnold, 302 Or App 765, 767, 462 P3d 753
(2020), for example, while appearing in court remotely by
video, the defendant raised his middle finger. The prosecutor reported it, and the defendant admitted to “flipping the bird” to the prosecutor. Id. Only the prosecutor saw it happen. Id. at 767-68. The court told the parties that, given the defendant’s admission, it believed it could find him in summary contempt, and it asked defense counsel if he wanted to be heard on the issue. Id. at 768. Defense counsel conferred with his client, then asked the court to “graciously excuse the frustration” that the defendant had exhibited in an
emotional moment. Id. The court asked the prosecutor if he
wanted to respond, and the prosecutor stated that he would
leave it to the court’s discretion but felt that some sort of a consequence was needed. Id. at 769. The court proceeded to
recite its understanding of the facts and the law regarding summary contempt, had the prosecutor testify under oath
as to what he saw, then found the defendant in contempt. Id. On appeal, we held that the issue was adequately preserved:
“As noted, the trial court sua sponte raised the issues that
defendant now raises on appeal and ruled that, as long
as the court could ‘substantiate that [defendant’s alleged
conduct] did happen in the courtroom when I was present
during the court time, it is punishable by summary contempt. That’s the position I’m going to take.’ The state had
an opportunity to raise any additional arguments, and the
Cite as 353 Or App 433 (2026) 447
record is sufficiently developed for our review of the matter. We, therefore, conclude that the policies underlying the
preservation requirement were served under the circumstances here, and that defendant’s argument is preserved.”
Id. at 771 (brackets in original; footnote omitted).
We reached a similar conclusion in Roberts. The
defendant in that case moved to suppress all of his statements in a police interview. Roberts, 291 Or App at 127.
During the suppression hearing, the trial court watched
a video of the interview and sua sponte asked the prosecutor whether one of the defendant’s statements was at least
an equivocal invocation of the right to counsel—an issue
that defendant had never raised. Id. “An extended discussion followed, primarily between the court and state, about what constitutes an equivocal invocation,” with both parties citing case law. Id. at 127-28. In denying suppression, the trial court reasoned, among other things, that the defendant did not invoke his right to counsel or that, “even if he had made an equivocal invocation, the police properly clarified his intent before proceeding.” Id. at 128. On appeal, the defendant challenged the suppression ruling, arguing
that he equivocally invoked the right to counsel and that
the police did not do enough to clarify. Id. at 128-29. We concluded that the purposes of preservation were adequately
served, because “the invocation issue was extensively discussed, although [the] defendant did little to advance that discussion.” Id. at 130. The defendant had not taken a position or alerted the trial court to a perceived “error” in its reasoning, but the issue nonetheless was clearly raised and ruled upon, the state had an opportunity to be heard on it, and there was no reason to believe that the record would
have “developed materially differently if the appellant had been more vocal.” Id. at 130-31. We noted several other cases containing similar preservation holdings, such as State v.
Smith, 252 Or App 707, 288 P3d 974 (2012), rev den, 353 Or
429 (2013), and State v. Spears, 223 Or App 675, 196 P3d
1037 (2008). Roberts, 291 Or App at 130-31.
By contrast, a passing reference to an issue by the
court or the opposing party does not serve the purposes of
preservation. See, e.g., State v. Amador, 230 Or App 1, 9 n 2, 448 State v. Teeman
213 P3d 846 (2009), rev den, 347 Or 533 (2010) (the prosecutor’s “passing reference” to an issue that the defendant
had not argued did not preserve that issue for appeal); State v. Lamb, 249 Or App 335, 340 n 4, 277 P3d 581 (2012) (the
trial court’s “passing reference” to an issue on which neither the prosecutor or the defendant commented did not preserve
that issue for appeal). Similarly, a trial court sua sponte referring to an issue in general terms will not preserve a
specific or novel argument that it is apparent the trial court never considered. See, e.g., State v. Taylor, 323 Or App 422, 523 P3d 696 (2022) (a “general” motion for judgment of
acquittal, which included “[n]o specific arguments * * * as to the UUV count” and no citations to case law, did not preserve for appeal the specific legal issue that the defendant raised on appeal to challenge his UUV conviction, where it
was “readily apparent from the colloquy at trial that neither defendant, the state, nor the court was thinking of [that
legal issue]”).
In this case, we agree with defendant that the variance issue was adequately preserved for appeal. The trial
court surprised the parties by finding defendant guilty
on a theory that the state had not argued (assault with a
dangerous weapon). The court recognized that it would be
creating a potential variance problem by doing so, and it
preemptively did the research to make sure that the variance was permissible, then made a clear record of its ruling and its reasoning during its speaking verdict. Defendant
could have objected, but it would have served little purpose, given that the court had essentially anticipated an objection and already addressed it. And “there is no reason to believe that the record before the trial court would have developed materially differently if the appellant had been more vocal.” Roberts, 291 Or App at 131. The fact that the prosecutor was not given an opportunity to address the variance issue could be problematic in another case, but, here, even on appeal,
the state has not made any arguments for the variance
being permissible. We do not see how anything the prosecutor could have said would put the state in a more favorable position on appeal. Under the circumstances, we conclude
that the issue was adequately preserved and proceed to the
merits.
Cite as 353 Or App 433 (2026) 449
D. The variance was impermissible.
A variance occurs when “the state’s allegations in
the indictment * * * differ from the proof that the state offers at trial.” State v. Johnson, 342 Or App 278, 284, 576 P3d
475 (2025). In determining whether a variance is permissible, we initially consider “whether the variance concerns a material element and whether the variance prejudiced the
defendant.” Samuel, 289 Or App at 627. Either is dispositive; that is, “if a variance concerns a material element or prejudices the defendant, it is impermissible.” Id. (emphasis in original). If a variance does not concern a material element or prejudice the defendant, then it is permissible so long
as we can ascertain “that the factual theory on which the
grand jury based the indictment was the same one on which
the state tried its case.” State v. Benton, 317 Or App 384, 399, 505 P3d 975 (2022), aff’d, 371 Or 311, 534 P3d 724 (2023).
“Whether a variance between the state’s pleading and proof
is permissible is a question of law, which we review for legal error.” Samuel, 289 Or App at 626-27.
We begin and end our analysis with materiality. In
determining whether a variance concerns a material element of the crime, “the test * * * [is] whether the indictment states an offense without the allegation.” Id. at 627 (internal quotation marks and brackets omitted). In other words, if
the allegation at issue were to be stricken from the indictment, would the indictment still allege all of the elements of the crime? In State v. Kowalskij, 253 Or App 669, 674,
291 P3d 802 (2012), rev den, 353 Or 748 (2013), we held that the identity of the crime victim was not a material element, because the indictment still alleged all the elements of the crime when the victim’s name was stricken, such that a variance regarding the victim’s identity was permissible absent prejudice to the defendant. By contrast, in State v. Newman, 179 Or App 1, 9-10, 39 P3d 874 (2002), we held that the identity of the entity that suspended the defendant’s driving
privileges was a material element of the offense because the identification of the suspending agency as “the DMV” was
the only indication in the indictment that the defendant’s
driving privileges had been suspended “in this state”—a
statutory element of the crime. That is, “the DMV” was a
450 State v. Teeman
stand in for the “in this state” element, which was not otherwise stated in the indictment, such that it was impermissible to find defendant guilty based on evidence that the district court suspended his driving privileges, because doing so would alter a material element. Id. at 10-11.
Here, defendant was charged in Count 9 with committing second-degree assault by “unlawfully and knowingly caus[ing] physical injury to [S] by means of a deadly weapon.” Had the state charged him using the full statutory language—”by means of a deadly or dangerous weapon”—
there would be no variance issue. See ORS 163.175(1)(b) (it is second-degree assault when a person “[i]ntentionally or
knowingly causes physical injury to another by means of a
deadly or dangerous weapon”). But that does not change the
fact that “by means of a deadly weapon” is the allegation
made as to a material element of the offense. If “by means
of a deadly weapon” were stricken from the indictment,
Count 9 would not state all the elements of second-degree
assault under ORS 163.175(1)(b). It follows that “by means
of a deadly weapon” is an allegation of a material element
of the offense, that the state had to prove the allegation as pleaded, and that the trial court erred in finding defendant guilty based on his having caused physical injury “by means of a dangerous weapon” instead.
We recognize that it is possible “that the factual theory on which the grand jury based the indictment was the
same one on which the state tried its case.” Benton, 317 Or App at 399. That is, the state may have presented the exact same evidence to the grand jury as it presented at trial, and the grand jury may have simply accepted the premise that
the trial court did not—that a pistol used to hit someone
in the face is a “deadly” weapon. But we do not understand
that to matter to the analysis, under existing case law, when the variance pertains to a material element. A variance is
impermissible if it goes to a material element of the offense.
In concluding that the variance in this case was permissible, the trial court relied on Pachmayr and Samuel, but those cases are distinguishable. It is true that, in Pachmayr, with respect to a second-degree assault charge, the Supreme Court held that it was permissible for the state to amend the Cite as 353 Or App 433 (2026) 451
indictment after the close of its evidence to replace “deadly weapon” with “dangerous weapon.” 344 Or at 495. That case
was in a specific procedural posture, however, which is not analogous to the situation here.
The indictment in Pachmayr alleged three counts
of second-degree assault, based on the defendant causing an automobile crash that injured three people. Id. at 484. Two counts alleged that the defendant committed the assault
by means of a “dangerous weapon,” “to wit: an automobile,”
while one count alleged that he committed the assault by
means of a “deadly weapon,” “to wit: an automobile.” Id. at 484. The trial court allowed the state, mid-trial, to change “deadly” to “dangerous” in the latter count. Id. at 485. The Oregon Supreme Court affirmed, focusing on the fact that
the latter count specifically alleged that the weapon was an automobile and further alleged that the defendant acted
“under circumstances manifesting extreme indifference to
the value of human life.” Id. at 491-92. Essentially, the court read the pre-amendment indictment as already functionally
alleging that the defendant committed the crime by means
of a deadly or dangerous weapon, such that it would state all the elements of the offense even if “deadly” was stricken. Id. at 495.
As for Samuel, the trial court did not identify what
in that decision it found supportive of its conclusion that the variance here was permissible, and we do not view Samuel
as supporting its conclusion. Samuel contains a general
discussion of variance principles, including those pertaining to material elements. 289 Or App at 627. However, the
defendant in that case conceded in the trial court that the variance to which he objected did not concern a material
element, so we refused to consider his argument to the contrary made for the first time on appeal. Id. Samuel’s discussion of the material-element issue is therefore limited to the same basic principles already discussed herein.
A case that is more analogous is State v. Alben, 139
Or App 236, 911 P2d 1239, rev den, 323 Or 153 (1996). There, the defendant was charged with first-degree robbery with a
firearm on the theory that he “was armed with a deadly
weapon, to-wit: a firearm.” Id. at 239 (emphasis omitted).
452 State v. Teeman
The trial evidence suggested, however, that he was actually armed with a BB gun. Id. The trial court instructed the
jury that it could find the defendant guilty if it found that he was armed with either a deadly or dangerous weapon,
and the jury ultimately found that he was armed with a BB
gun, not a firearm. Id. at 239-40. On appeal, we reversed the conviction, concluding that the jury instruction amounted to a substantive amendment to the indictment. Id. at 242-43.
It impermissibly “provided the state with a different theory of the case, altered the availability of defendant’s defense, and prejudiced defendant’s right to notice of the charges
against him.” Id. at 243. Although framed as an impermissible substantive amendment rather than an impermissible
variance (and thus approaching the issue differently than
we do here), its reasoning rested in large part on the recognition that the trial court’s instruction “permitted a conviction on an unindicted crime” because it effectively altered the nature of a material element to include the “use of a
dangerous weapon.” Id. at 243.
It was error for the trial court to find defendant
guilty of second-degree assault, Count 9, based on his knowingly causing physical injury to S by means of a dangerous
weapon. The indictment alleged that defendant acted by
means of a deadly weapon, which allegation went to a material element of the offense, so the variance was impermissible. Accordingly, the trial court erred in finding defendant guilty on Count 9, and we reverse the conviction on Count
9.2
III. SERIOUS PHYSICAL INJURY AND
MATERIAL VARIANCE (COUNT 10)
Given our disposition of the first two assignments of
error, we need not address defendant’s third assignment of
error, in which he makes an alternative argument regarding merger of the verdicts on Counts 8 and 9. We instead
next address Count 10, in which defendant was charged
with third-degree assault for having recklessly caused
2
As with Count 8, the parties agree with each other that, in this particular case, we should reverse the conviction on Count 9 without directing entry of a guilty verdict for the lesser included offense of fourth-degree assault, and we accept their agreed disposition solely for purposes of this appeal. Cite as 353 Or App 433 (2026) 453
serious physical injury to S “by means of a firearm, a deadly weapon.” Counts 9 and 10, although alleging different
degrees of assault, were based on the same conduct, differing only in the degree of injury caused and the mental state alleged, and the trial court merged the guilty verdicts on
those two counts. Because we have reversed the conviction
on Count 9, the guilty verdict on Count 10 would result in a conviction on Count 10 on remand, if that verdict stands.
Defendant contends that the trial court should
have acquitted him of third-degree assault, Count 10, both
because the state failed to prove that he caused “serious
physical injury” to S and because the state failed to prove that he assaulted S by means of a “deadly weapon.” The former is a required element of the form of third-degree assault charged in Count 10. See ORS 163.165(1)(a) (one way to commit third-degree assault is to “[r]ecklessly cause[ ] serious physical injury to another by means of a deadly or dangerous weapon” (emphasis added)). As for the latter, the statute requires use of “a deadly or dangerous weapon” to commit
the assault, and, as with Count 9, the indictment specifically and only charged use of a “deadly weapon” in Count 10.
It was error to find defendant guilty of third-degree
assault, Count 10. The evidence was legally insufficient
to prove “serious physical injury,” as already discussed in connection with Count 8. And the trial court was unpersuaded that defendant used a “deadly weapon,” as already
discussed in connection with Count 9. For both reasons, the court erred in entering a guilty verdict on Count 10.
IV. CONSTITUTING DOMESTIC VIOLENCE
(COUNT 2)
We next consider defendant’s conviction for harassment constituting domestic violence, Count 2, which involved a different victim, R. “When a crime involves domestic violence, the accusatory instrument may plead, and the prosecution may prove at trial, domestic violence as an element of the crime. When a crime is so pleaded, the words ‘constituting domestic violence’ may be added to the title of the crime.” ORS 132.586(2); see also ORS 135.230(3) (defining “domestic violence”).
454 State v. Teeman
Here, the indictment alleged multiple crimes
against R, two of which were titled as a crime “constituting domestic violence” and pleaded with a domestic-violence allegation. Count 2 is titled only “harassment,” however, and does not contain any domestic-violence allegation. The state concedes that it was error to convict defendant of harassment “constituting domestic violence” in Count 2, when it was not pleaded that the crime involved domestic violence. The state also concedes that preservation is excused because the error appeared for the first time in the judgment. State v. Lewis, 236 Or App 49, 52, 234 P3d 152, rev den, 349 Or 172 (2010). We accept the concession and remand with instructions to
enter a conviction for harassment on Count 2.
V. PER DIEM FEES
In his remaining two assignments of error, defendant challenges the imposition of per diem fees on Counts
2 and 13 in Case No. 23CR41259 and on Counts 1 and 3 in
Case No. 24CR04237. The state concedes the errors, as well
as conceding that preservation is excused because the errors appeared for the first time in the judgments. See State v.
Hostman, 343 Or App 506, 513, 579 P3d 253 (2025) (holding that it was error to include unannounced per-diem-fees
provision in sentencing judgment); State v. Barr, 331 Or App 242, 244, 545 P3d 772, rev den, 372 Or 720 (2024) (same);
see also State v. Cobat, 340 Or App 643, 649, 571 P3d 1136, rev den, 374 Or 419 (2025) (excusing preservation in similar circumstances). We need not address the per diem fees
ordered in Case No. 23CR41259, because defendant will be
resentenced in that case based on our other holdings, and it is unlikely the issue will arise again on remand. We accept the concession as to Case No. 24CR04237, however, and
remand for resentencing in that case.
In Case No. 23CR41259, conviction on Count 2
reversed and remanded for entry of a conviction for harassment; convictions on Counts 8 and 9 reversed; entry of a
guilty verdict on Count 10 reversed; remanded for resentencing; otherwise affirmed. In Case No. 24CR04237,
remanded for resentencing; otherwise affirmed. In Case No.
22CR56140, affirmed.