Submitted May 31, 2013.
Washington County Circuit Court. C101778CR. Donald R. Letourneau, Judge.
Peter Gartlan, Chief Defender, and Eric Johansen, Senior Deputy Public Defender, Office of Public Defense Services filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and David B. Thompson, Senior Assistant Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Nakamoto, Judge, and Egan, Judge.
[268 Or.App. 36] ARMSTRONG, P. J.
Defendant appeals a judgment of conviction for both second-degree assault, ORS 163.175, and third-degree assault, ORS 163.165, assigning error to the trial court's grant of the state's motion to amend the indictment in the case. Defendant contends that the trial court lacked authority to allow the amendment because the amendment added a missing element to the crime charged and was, therefore, a substantive amendment that was beyond the court's authority to allow. We conclude that the amendment was not a substantive amendment--that is, one that added a missing element to the crime charged in the original indictment--and, hence, the trial court had authority to allow it. We also reject defendant's additional assignment of error without discussion. Accordingly, we affirm.
The pertinent facts are undisputed. In early 2010, the victim, a 19-year-old man, was walking home when a car stopped next to him. Defendant jumped out of the car holding a baseball bat and rushed toward the victim, swinging the bat at the victim's head. The victim used his arm to block the blow and then ran home. Defendant chased the victim and hit him a second time as he reached his home. Once the victim was safely inside his home, defendant smashed a window in the home and fled. The victim later discovered that his arm was broken.
A grand jury indicted defendant. Count 1 of the indictment alleged that " defendant on or about January 19, 2010, in Washington County, Oregon, did unlawfully and intentionally cause serious physical injury to [the victim] by means of a dangerous." That allegation contained an obvious error: The prepositional phrase " by means of a dangerous" was incomplete, viz., it contained a preposition, " of," and an adjective, " dangerous," that did not modify any other word in the indictment.
Count 1 also explicitly alleged that defendant had committed the crime of first-degree assault. That crime can be committed in four ways: (1) by causing serious physical injury by means of a deadly or dangerous weapon, (2) by causing serious physical injury to a child under six years of age, (3) by committing second-degree assault against a [268 Or.App. 37] pregnant victim, or (4) by causing serious physical injury while driving under the influence of intoxicants. ORS 163.185(1). Each
of those theories of culpability requires the state to prove at least one fact not required by the other theories.
At the close of the state's case-in-chief, defendant moved for a judgment of acquittal on Count 1. First, defendant argued that the indictment was legally insufficient because the failure to include the word " weapon" at the end of the phrase, " cause[d] serious physical injury to [the victim] by means of a dangerous," meant that the indictment failed to allege an essential element of the crime charged in Count 1, viz., first-degree assault. In making that argument, defendant conceded that the original indictment had provided him with adequate notice of the charge notwithstanding the failure to include the word " weapon" in it. In response, the state moved to amend the indictment to add the word " weapon" after the word " dangerous" in Count 1. Second, defendant argued that the state had failed to present evidence from which a ...