Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

State v. Garcia

Court of Appeals of Oregon

March 15, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
GERARDO GARCIA, Defendant-Appellant.

          Submitted September 28, 2016

         Washington County Circuit Court C150547CR, Rick Knapp, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Peenesh Shah, Assistant Attorney General, filed the brief for respondent.

          Before Duncan, Presiding Judge, and DeVore, Judge, and Garrett, Judge.

         Case Summary:

         Defendant 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.

         Held:

         The 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 charge.

         Affirmed.

          DEVORE, J.

         Defendant 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.[1] 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 affirm.

         A grand 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 ...

Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.