State v. Teeman

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 con- victed 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 con- test, 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 assign- ments 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 harass- ment “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 judg- ment 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 conces- sion 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, second- degree 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 equiva- lent to moving for a judgment of acquittal. State v. Gonzalez- Valenzuela, 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 determina- tions, a rational factfinder could have found the elements of the crime beyond a reasonable doubt.” State v. Lujano- Rosales, 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 frac- ture.” 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, substan- tially 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 phys- ical 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, pro- tracted impairment of health or protracted loss or impair- ment 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 suf- ficient 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 “pro- tracted,” we have previously observed that assault-related statutes identify three categories of physical injury in tem- poral 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 con- cussion as the result of an assault. Id. at 203-04. We held that the evidence was legally insufficient to prove “pro- tracted” impairment of the victim’s health as a result of the concussion, where there was evidence that he “had some con- cussive 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 orig- inal). 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 rea- sonable 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 chal- lenges 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 sev- eral 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 “cor- rect 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 pis- tol, 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 nec- essarily 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 con- text, 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, stat- ing 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 pis- tol, 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 con- cluded 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 per- missible 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. dan- gerous 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 speak- ing 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 instrumen- tal 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 danger- ous 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 exten- sion, 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 defen- dant 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 posi- tion 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 prosecu- tor 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, “depend- ing on how it’s used and the extent of the injury. That is my answer.” Both the prosecutor and defense counsel were mis- taken in asserting that anything can be a deadly weapon depending how it is used, as that principle applies to dan- gerous weapons, not deadly weapons. See ORS 161.015(1) (defining “dangerous weapon” to mean “any weapon, device, instrument, material or substance which under the circum- stances 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 sur- prise—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 dan- gerous 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 incor- rectly suggested that a BB gun could be a deadly weapon depending on how it was used, such that it might not mat- ter 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 cir- cumstances 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 ade- quately 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 prosecu- tor reported it, and the defendant admitted to “flipping the bird” to the prosecutor. Id. Only the prosecutor saw it hap- pen. Id. at 767-68. The court told the parties that, given the defendant’s admission, it believed it could find him in sum- mary 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 con- tempt. 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 mat- ter. We, therefore, conclude that the policies underlying the preservation requirement were served under the circum- stances 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 state- ments 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 prosecu- tor 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 discus- sion 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 defen- dant did not invoke his right to counsel or that, “even if he had made an equivocal invocation, the police properly clar- ified 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 con- cluded that the purposes of preservation were adequately served, because “the invocation issue was extensively dis- cussed, although [the] defendant did little to advance that discussion.” Id. at 130. The defendant had not taken a posi- tion 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 prose- cutor’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 pre- serve 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 vari- ance 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 vari- ance 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 prosecu- tor 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 permissi- ble, 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 prej- udices 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 ele- ment 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 indict- ment, 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 vari- ance 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 iden- tity 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 other- wise stated in the indictment, such that it was impermissi- ble to find defendant guilty based on evidence that the dis- trict 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 com- mitting second-degree assault by “unlawfully and know- ingly 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 the- ory 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 per- missible, 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