Submitted September 28, 2016
County Circuit Court C150547CR, Rick Knapp, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Laura A. Frikert, Deputy Public Defender, Office of Public
Defense Services, filed the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Peenesh Shah, Assistant Attorney General, filed
the brief for respondent.
Duncan, Presiding Judge, and DeVore, Judge, and Garrett,
appeals a judgment of conviction for burglary, assigning
error to the trial court's amendment of the indictment.
The prosecutor represented to the court that the original
indictment contained a scrivener's error and that the
amendment reflected the true charge that the grand jury had
considered. The amendment revised the count from burglary
“with the intent to commit the crime of assault
therein” to burglary “with the intent to commit
the crime of coercion therein.” Defendant challenges
the revision as an impermissible substantive amendment that
changes a material element of the burglary count without
approval of a grand jury.
Court of Appeals concluded that even if the trial court erred
in allowing the amendment, the error was harmless and did not
affect the verdict or substantially affect defendant's
rights. Defendant was not prejudiced by the indictment's
amendment, whether through lack of notice, an inability to
defend, a risk of double jeopardy, or being tried on a charge
other than that which the grand jury had charged him. The
trial court, by accepting the prosecutor's explanation of
grand jury proceedings, made findings that the grand jury had
intended to return an indictment that matched the amended
appeals a judgment of conviction on a number of offenses. In
the first assignment of error, he seeks reversal of the
guilty verdict on first-degree burglary of a dwelling, ORS
164.225. Defendant challenges the trial
court's amendment of the indictment done as trial was
about to commence. The amendment revised Count 3 from
burglary "with the intent to commit the crime of
assault therein" to burglary "with the
intent to commit the crime of coercion
therein." (Emphases added.) Defendant argues that the
change was impermissible because it was a substantive
amendment, accomplished without approval of a grand jury.
Defendant argues that the amendment was substantive because
the specific crime that a defendant is alleged to have
intended to commit in the dwelling is a material element of a
burglary charge. We conclude that, even if the trial court
had erred in allowing the amendment, the error is harmless.
We have considered and reject defendant's second
assignment of error without written discussion. Therefore, we
jury indicted defendant with eight offenses based on his
entry and actions in the home of a husband and wife. As
originally filed, the indictment alleged, in relevant part:
"COUNT 1 [First Degree Burglary]
"The defendant * * * did unlawfully and knowingly enter
or remain in a dwelling * * * with the intent to commit the
crime of harassment therein.
"The state further alleges that the above-described
offense was committed in an occupied dwelling.
"The state further alleges that, during the commission
of the above-described offense, the defendant caused or
threatened physical injury to another person.
"COUNT 2 [Harrassment]
"The defendant *** did unlawfully and intentionally
harass or annoy [husband] *** by subjecting [husband] to