State v. Rodriguez-Rodriguez

341 P.3d 247, 268 Or. App. 35, 2014 Ore. App. LEXIS 1849
CourtCourt of Appeals of Oregon
DecidedDecember 31, 2014
DocketC101778CR; A148435
StatusPublished
Cited by1 cases

This text of 341 P.3d 247 (State v. Rodriguez-Rodriguez) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Rodriguez-Rodriguez, 341 P.3d 247, 268 Or. App. 35, 2014 Ore. App. LEXIS 1849 (Or. Ct. App. 2014).

Opinion

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 [37]*37pregnant victim, or (4) by causing serious physical injury while driving under the influence of intoxicants. ORS lGS.lSSH).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 reasonable jury could find that the victim had suffered a serious physical injury, which the state was required to prove to convict defendant of first-degree assault.

The trial court granted the state’s motion to amend the indictment, but it also granted defendant’s motion to acquit him of first-degree assault based on the state’s failure to prove that the victim had suffered a serious physical injury. However, the trial court allowed the state to proceed on a charge of second-degree assault as a lesser-included offense of the indicted crime of first-degree [38]*38assault.2 The jury found defendant guilty of second-degree assault, and defendant appeals the resulting judgment.

Article VII (Amended), section 5(3), of the Oregon Constitution provides that “a person shall be charged in a circuit court with the commission of any crime punishable as a felony only on indictment by a grand jury.” Article VII (Amended), section 5(6), of the Oregon Constitution provides, in turn, that the “district attorney may file an amended indictment or information whenever, by ruling of the court, an indictment or information is held to be defective in form.” An amendment that adds a missing material element to a crime charged in an indictment is a substantive amendment and not an amendment that corrects a defect in the form of the indictment. Hence, whether the court properly allowed the state to amend the indictment depends on whether the amendment added a missing material element to the crime that the indictment purported to charge in Count 1. Predictably, the parties disagree on whether the amendment added a missing element, or whether it merely corrected a defect in form.

Generally, an indictment has alleged all of the elements of a charged crime if it tracks the wording of the statute that defines the crime. See, e.g., State v. Lotches, 331 Or 455, 466, 17 P3d 1045 (2000), cert den, 534 US 833 (2001). If an indictment does not track the wording of the statute, the indictment is nonetheless sufficient to inform the defendant of the charge if it states “the acts constituting the offense in ordinary and concise language * * * in such a manner as to enable a person of common understanding to know what is intended.” ORS 132.550(7). To determine what an indictment communicates, we examine the indictment as a whole. State v. Jennings, 131 Or 455, 461, 282 P 560 (1929). Accordingly, [39]*39an indictment can be sustained even if an essential element or fact was communicated only by implication or context.

For example, in State v. Crampton, 176 Or App 62, 65, 31 P3d 430 (2001), overruled on other grounds by State v. Caldwell, 187 Or App 720, 69 P3d 830 (2003), we concluded that an indictment alleging that the defendant “‘did unlawfully and knowingly carry concealed * * * a handgun’” implicitly included the allegation that the defendant lacked a permit or license to carry the concealed handgun. In that case, an officer stopped the defendant for driving with a suspended license and found several guns concealed in the defendant’s car. The defendant was charged with, and convicted of, unlawful possession of a weapon, ORS 166.250. On appeal, the defendant challenged the adequacy of the indictment to charge that crime because the indictment did not explicitly allege that the defendant did not have a concealed-weapons permit. We rejected that argument because we concluded that the word “unlawfully,” meant “without legal authorization or justification,” and, when read in context, that word necessarily conveyed the idea that the defendant did not have a concealed-weapons permit. Crampton, 176 Or App at 68. In other words, even though the original indictment did not expressly allege that the defendant did not have a permit, it was sufficient that the allegation was implicitly communicated by the word “unlawfully.”

Similarly, in State v.

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Bluebook (online)
341 P.3d 247, 268 Or. App. 35, 2014 Ore. App. LEXIS 1849, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-rodriguez-rodriguez-orctapp-2014.