392 P.3d 815
Or. Ct. App.2017Background
- Defendant indicted by grand jury on eight offenses arising from entry into a married couple’s home; Counts included two first-degree burglary counts (Count 1: burglary with intent to commit harassment; Count 3 originally typed as burglary with intent to commit assault) and a separate coercion count.
- Prosecutor explained just before trial that Count 3 was presented to the grand jury as burglary with intent to commit coercion, but a clerical/autofill error in the drafted indictment replaced “coercion” with “assault.”
- The trial court allowed a handwritten interlineation amending Count 3 to substitute “coercion” for “assault” after the prosecutor represented the grand jury’s actual intent; defendant objected, arguing the change was substantive and required grand-jury resubmission.
- Defendant proceeded to a bench trial without requesting a continuance; the court convicted on the amended indictment, merged the two burglary counts, and sentenced defendant.
- On appeal the primary contention was that the court lacked authority to amend the indictment by changing the intended crime underlying the burglary (a material element), which—defendant argued—required resubmission to the grand jury; defendant also raised a second assignment of error that the court rejected without written discussion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether substituting “coercion” for “assault” in the burglary count was a permissible amendment (form) or an impermissible substantive change requiring grand-jury resubmission | State: Amendment was proper because the intended underlying crime is not a material element of the burglary count itself and the change corrected a clerical error the grand jury had in fact returned | Devore (defendant): The specific crime alleged as the object of the burglary is a material element; changing it substantively altered the indictment and required grand-jury approval | Court did not decide the form/substance question but held any error in allowing the amendment was harmless under the circumstances and affirmed the convictions |
| Whether the amendment prejudiced defendant’s statutory and constitutional rights (notice, opportunity to prepare, double jeopardy risk) | State: No prejudice; indictment and grand-jury intent were clear, defendant had notice and did not request delay | Devore: Amendment just before trial impaired preparation and altered the essential charge | Held: No prejudice shown—defendant proceeded without requesting more time; court found grand jury intended coercion; error (if any) harmless |
| Whether the trial court made adequate findings to support treating the change as correction of scrivener’s error | State: Court accepted prosecutor’s representation and made findings about grand-jury intent | Devore: Contended court lacked authority absent grand-jury resubmission | Held: Court made the factual findings (recorded) and followed the practice Long recommends; that sufficed here given harmlessness |
| Effect on trial outcome and double jeopardy | State: Resubmission would not have changed result because grand jury already considered coercion | Devore: Risk of being tried on a different charge and double jeopardy concerns | Held: No risk shown; verdict unaffected; affirmed |
Key Cases Cited
- State v. Long, 885 P.2d 696 (Or. 1994) (discusses when amendment of an indictment requires grand-jury resubmission and recommends court findings)
- State v. Wimber, 843 P.2d 424 (Or. 1992) (tests for distinguishing form versus substance in indictment amendments)
- State v. Eberhardt, 201 P.3d 915 (Or. App. 2009) (error in indictment that does not prejudice indictment functions is harmless)
- State v. Burnett, 60 P.3d 547 (Or. App. 2002) (purposes of indictment: notice, identity of crime, court notice, reliance on grand-jury findings)
- State v. Davis, 77 P.3d 1111 (Or. 2003) (harmless-error standard: error is harmless unless it substantially affected party’s rights)