S055206, Opinion — State v. Pachmayr

482
Argued and submitted January 8, decision of Court of Appeals reversed,
j udgment of circuit court affirmed May 8, 2008
STATE OF OREGON,
Petitioner on Review,
v.
NATHAN DONOVAN PACHMAYR,
Respondent on Review.
(CC C032969CR; CA A126620; SC 8055206)
185 P3d 1 103

Cite as 344 Or 482 483
CJS, Indictments and Informations § 193.
En Banc
On review from the Court of Appeals.*
David B . Thompson, Assistant Attorney General, Salem,
argued the cause and filed the briefs for petitioner on review.
With him on the briefs were Hardy Myers, Attorney General,
and Mary H. Williams, Solicitor General.
Bronson D. James, Chief Deputy Public Defender, Salem,
argued the cause and filed the briefs for respondent on
review. With him on the briefs was Peter Gartlan, Chief
Defender, Office of Public Defense Services, Legal Services
Division.
WALTERS , J.
The decision of the Court of Appeals is reversed. The j udg
ment of the circuit court is affirmed.
* Appeal from Washington County Circuit Court, Nancy W. Campbell, Judge.
213 Or App 665, 162 P3d 347 (2007).

484 State v. Pachmayr
WALTERS, J.
This is a criminal case in which the trial court
allowed the district attorney to amend an indictment at the
close of the state's case-in-chief. On appeal from that deci
sion, the Court of Appeals held that Article VII (Amended),
section 5, of the Oregon Constitution mandated that the
grand jury, rather than the district attorney, make that
amendment. We conclude that the indictment was defective
in form only, and that the trial court correctly permitted the
district attorney to amend it. We reverse the decision of the
Court of Appeals and affirm defendant's conviction.
Defendant drove a car over a highway median and
into another car, injuring the two occupants of the other car
as well as a passenger in his car. Based on that incident, the
grand jury charged defendant with, among other things,
three counts of assault in the second degree-one count for
each victim. ORS 163 . 1 75( 1)(c) defines the relevant crime:
"A person commits the crime of assault in the second
degree if the person:
"* * * * *
"(c) Recklessly causes serious physical injury to
another by means of a deadly or dangerous weapon under
circumstances manifesting extreme indifference to the
value of human life."
(Emphasis added.)
Counts 1 and 3 of the indictment alleged that defen
dant had committed assault in the second degree by means of
a "dangerous weapon." C ount 2 alleged that defendant had
committed assault in the second degree by means of a "deadly
weapon." All three counts described the pertinent weapon as
"to wit: an automobile."
At trial, the state presented evidence that defendant
drove the car recklessly and thereby caused physical injury to
all three victims. At the close of the state's case-in-chief,
defendant moved for a judgment of acquittal on Count 2,
arguing that the state had failed to present evidence from
which the jury could find that he had used a deadly weapon.

Cite as 344 Or 482 485
A deadly weapon is distinguished from a dangerous weapon
by ORS 161.015:
"( 1 ) 'Dangerous weapon' means any weapon, device,
instrument, material or substance which under the circum
stances in which it is used, attempted to be used or threat
ened to be used, is readily capable of causing death or seri
ous physical injury.
"(2) 'Deadly weapon' means any instrument, article or
substance specifically designed for and presently capable of
causing death or serious physical injury."
The state acknowledged that it had not adduced evidence
that the car was a deadly weapon, but argued that the use of
the term "deadly weapon" in Count 2 was merely a "scriv
ener's error." The state sought permission of the trial court to
amend Count 2 to match Counts 1 and 3 and allege that the
car was a dangerous weapon. The trial court allowed the
amendment, and the jury convicted defendant on all three
counts.
Defendant appealed his conviction on Count 2 , argu
ing that the amendment was not merely a matter of form
because it had materially altered the indictment, and that
the Oregon Constitution requires that the grand jury make
such amendments. The Court of Appeals held that the
amendment was one of substance, not form, and reversed.
State v. Pachmayr, 2 13 Or App 665, 162 P3d 347 (2007). We
allowed the state's petition for review.
Article VII (Amended), section 5, of the Oregon
Constitution provides, in part:
"(3) Except as provided in subsections (4) and (5) of
this section, a person shall be charged in a circuit court with
the commission ofany crime p unishable as a felony only on
indictment by a grand jury.
"(4) The district attorney may charge a person on an
information filed in circuit court of a crime punishable as a
felony if the person appears before the judge of the circuit
court and knowingly waives indictment.
"* * * * *
"(6) An information shall be substantially in the form
provided by law for an indictment. The district attorney may

486 State v. Pachm ayr
file an amended indictment or information whenever, by
ruling of the court, an indictment or information is held to
be defective in form."
(Emphases added.)
To determine whether the district attorney was per
mitted to make the amendment in this case, we must deter
mine whether the indictment was defective in "form." We
begin with an examination of the text and history of the con
stitutional provision permitting district attorneys to amend
indictments and the case law concerning that provision.
Priest v. Pearce, 3 1 4 Or 4 1 1 , 4 1 5- 16, 840 P2d 65 ( 1 992).
The constitutional text provides that only the grand
jury may indict a defendant for a crime punishable as a fel
ony, unless the defendant waives indictment, in which case
the district attorney may bring the charge on information. Or
Const, Art VII (Amended) , § 5(3) and (4). The trial court may
permit the district attorney to amend either an indictment
or an information, but only if it is defective in "form." Id. at
§ 5(6).
The current version of Article VII (Amended), sec
tion 5, of the Oregon Constitution was adopted in 1 974. It is
substantially similar to Article VII ( Original) , section 18, of
the Oregon Constitution ( 1908), which was amended to per
mit the district attorney to amend indictments held to be
defective in "form."1 Neither the 1974 nor the 1 908 version
defines the terms "defective in form" or "form." However, the
Oregon statutes that were in place at the time that the 1 908
provision was enacted did use substantially similar terms.
Those statutes distinguished between the allegations in an
indictment that were necessary to make the indictment suf
ficient to charge a crime and other defects or imperfections
that did not affect the sufficiency of the indictment. Those
statutes referred to the latter as "matters of form."
1 Article VII \Original), section 18 ( 1 908), provided, in part:
"No person shall be charged in any circuit court with the commission of any
crime or misdemeanor defined or made punishable by any of the laws of this
state, except upon indictment found by a grand jury; prouided, however, that
any district attorney may file an amended indictment whenever an indictment
has, by a ruling of the court, been held to be defective in form."
(Emphasis in original.)

Cite as 344 Or 482 (2008) 487
Section 1314 of the statutes that were in effect in
1908 provided the requirements for a sufficient indictment:
"The indictment is sufficient if it can be understood
therefrom:
"l. That it is entitled in a court having authority to receive
it, though the name of the court be not accurately stated;
"2. That it was found by a grand jury of the county in
which the court was held;
"3. That the defendant is named, or if his name can not be
discovered, that he is described by a fictitious name, with
the statement that his real name is to the jury unknown;
"4. That the crime was committed within the jurisdiction
of the court, except where, as provided by law, the act,
though done without the county in which the court is held,
is triable therein;
"5. That the crime was committed at some time prior to
the finding of the indictment, and within the time limited
by law for the commencement of an action therefor;
"6. That the act or omission charged as the crime is clearly
and distinctly set forth, in ordinary and concise language,
without repetition, and in such a manner as to enable a per
son of common understanding to know what is intended;
"7. That the act or omission charged as the crime is stated
with such a degree of certainty as to enable the court to pro
nounce judgment, upon a conviction, according to the right
of the case."
The Codes and Statutes ofOregon, title XVIII, ch VIII, § 13 14
(Bellinger & Cotton 1 901).
Section 1315 of those statutes provided that an
indictment was not insufficient if it was defective in form:
"No indictment is insufficient, nor can the trial, judgment,
or other proceedings thereon be affected by reason of a
defect or imperfection in matter of form which does not tend
to the prejudice of the substantial rights of the defendant
upon the merits."
Thus, those statutes drew a distinction between the
substantive aspects of an indictment that were required to
render the indictment sufficient and the formal aspects of an

488 State
indictment, and provided that defects in the formal aspects of
an indictment were defects that did not prejudice the defen
dant or affect the sufficiency of the indictment. The 1891
Black's Law Dictionary , which was in general use in 1908,
recognized the same distinction in defining the word "form,"
and explained as follows:
"The distinction between 'form' and 'substance' is often
important in reference to the validity or amendment of
pleadings. If the matter of the plea is bad or insufficient,
irrespective of the manner of setting it forth, the defect is
one of substance. If the matter of the plea is good and suffi
cient, but is inartificially or defectively pleaded, the defect
is one of form."
Black's Law Dictionary 5 10 ( 1st ed 1891).
The 1908 constitution also used the words "defective
in form," and we have no reason to believe that it used those
words in a different sense than that in which they were used
in common parlance and contemporaneous statutes . There
fore, the constitution prohibited the district attorney from
amending an indictment that was insufficient to charge the
crime-an indictment that was defective in substance-in
order to make it sufficient, but allowed the district attorney
to correct other defects--defects in form.
The first case to consider the district attorney's
authority to amend indictments after the constitution was
amended in 1908 confirms that interpretation. In State v.
Moyer, 76 Or 396, 149 P 84 ( 1915), the defendant demurred to
an indictment that alleged that he had set fire to a stable, but
did not allege that the stable was the property of another-an
allegation necessary to state the crime. The trial court sus
tained the demurrer, but permitted the district attorney to
amend. The Supreme Court reversed the defendant's convic
tion, and drew a distinction between matters of substance
that are "essential to the charge" and matters of form:
"Our Constitution contains the only provision which
authorizes such an amendment, but only as to form; and
there seems to be a well-recognized distinction between
matters that are purely matters of form and matters that go
to the substance of the indictment, namely, formal matters
which are not essential to the charge and merely clerical

Cite as 344 Or 482 (2008) 489
errors, such as where the defendant cannot be misled to his
prejudice by the amendment, would be the only cases which
are permissible under our Constitution."
Id. at 399.
Since Moyer, the court has continued to consider the
allegations of an indictment that are essential to the charge
to be matters of substance. See, e.g., State v. Wimber, 315 Or
103, 1 14, 843 P2d 424 ( 1992) ("A matter that is essential to
show that an offense has been committed is a matter of sub
stance."). Other nonessential allegations are matters of form,
and defects in those allegations may be corrected by district
attorney amendment.
A defect in an indictment may or may not be appar
ent from the face of the indictment. On the surface, an indict
ment may appear to be both sufficient and accurate, but
extrinsic facts may demonstrate insufficiency or inaccuracy.
For example, in State v. Woodson, 3 15 Or 3 14, 845 P2d 203
( 1993) , the indictment alleged that the defendant committed
rape. At trial, the state offered evidence to prove only
attempted rape. The indictment was sufficient on its face, but
defective because the allegations in the original indictment
did not match the proof at trial. The court held that the con
stitution permitted amendment because the crime of rape
includes the crime of attempted rape. ORS 136.460(1);
Woodson, 3 15 Or at 3 19-20. As the court explained, "the
interlineation effected no change in the indictment; the
indictment already charged defendant with, and he could
have been convicted of, attempted rape." Id. at 3 1 9 (first
emphasis in original; second emphasis added). Therefore, the
defect in the indictment pointed up by the variance in proof
was one of form, and the district attorney was permitted to
amend the indictment to cure that defect. See also State v.
Long, 320 Or 361, 885 P2d 696 ( 1994) (indictment facially
sufficient, but alleged time period of offense was incorrect;
district attorney permitted to amend).
The defect i n the indictment i n this case also did not
appear on the face of the indictment. The proof presented at
trial revealed the defect and we turn now to whether that
defect was one of substance or form. In Wimber, the court set
out four questions for consideration in that analysis:

490 State v. Pachmayr
"( 1) D [oes] the amendment alter the essential nature
of the indictment against defendant, alter the availability
to him of defenses or evidence, or add a theory, element, or
crime? * * *
"(2) D [oes] the amendment prejudice defendant's right
to notice of the charges against him and to protection
against double jeopardy? * * *
"(3) [I] s the amendment itself sufficiently definite and
certain? * * *
[And, if the amendment deletes allegations, we ask a fourth
question:]
"(4) D [o] the remaining allegations in the indictment
state the essential elements of the offenses?"
3 15 Or at 1 14- 15. Those questions are tailored to the "consti
tutional purposes of requiring an indictment by a grand
jury," which are:
" '( 1) to inform the accused of the nature and character of
the criminal offense with which he is charged with suffi
cient particularity to enable him to make his defense, (2) to
identify the offense so as to enable the accused to avail him
self of his conviction or acquittal thereof in the event that
he should be prosecuted further for the same cause, and
(3) to inform the court of the facts charged so that it may
determine whether or not they are sufficient to support a
conviction.' "
Id. at 1 15 (quoting State u. Smith, 182 Or 497 , 500-0 1, 188
P2d 998 ( 1948)). Wimber phrased the questions a court
should ask as questions about the nature of the proposed
amendment and not as questions about the indictment itself.
That is sensible because, as we have noted, the defect in an
indictment may not be apparent on the face of that document.
We often must examine the proposed amendment and its
effect on the indictment to understand the nature of the
defect it seeks to remedy.
In considering the first Wimber question-whether
the amendment changes the essential nature of the charge
against defendant-Woodson is particularly instructive.
Here, assault with a dangerous weapon is not a statutory
"lesser included offense" of assault with a deadly weapon, but

Cite as 344 Or 482 491
the principle of Woodson compels us to examine whether, by
charging defendant with assault with a deadly weapon, the
state "already charged" him with assault with a dangerous
weapon. Woodson, 3 15 Or at 3 19. Count 2 of the original
indictment charged defendant with assault with a "deadly
weapon." Importing the definition of "deadly weapon" into
the indictment, the indictment alleged that defendant
"recklessly cause[d] serious physical injury to another by
means of any instrument, article or substance specifically
designed for and presently capable of causing death or
serious physical injury under circumstances manifesting
extreme indifference to the value of human life."
See ORS 163 . l 75( 1 )(c); ORS 161.0 15(2). Importing, instead,
the definition of "dangerous weapon" into the indictment, the
indictment alleged that defendant
"recklessly cause[d] serious physical injury to another by
means of any weapon, device, instrument, material or sub
stance which under the circumstances in which it is used,
attempted to be used or threatened to be used, is readily
capable of causing death or serious physical injury under
circumstances manifesting extreme indifference to the
value of human life."
See ORS 163. 1 75( 1)(c); ORS 161.0 15( 1).
Defendant argues that the two charges are qualita
tively different. First, he contends, there is a meaningful dis
tinction between the objects2 that constitute deadly and dan
gerous weapons. A deadly weapon is an "instrument, article
or substance," whereas a dangerous weapon is a "weapon,
device, instrument, material or substance." Compare ORS
161.015(1) with ORS 161.015(2). Both definitions use the
term "instrument," and defendant does not argue that a car is
not an "instrument. " Thus, the car is an object that could
qualify as either a deadly or a dangerous weapon. In our
view, the obj ects listed in the two definitions are not mean
ingfully distinguishable, at least for purposes of this case.
2 Although the word "object" is not used in the definition of either a deadly or
dangerous weapon, we use it here for the sake of simplicity to encompass all of the
items in the statutory lists.

492 State v. Pachmayr
The second difference that defendant points out
between assault with a deadly weapon and assault with a
dangerous weapon is the quality of the object-the car-that
makes it deadly or dangerous in nature. Defendant argues
that a deadly weapon must be designed to be capable of caus
ing serious injury, while a dangerous weapon must be used
under circumstances that make it so. ORS 161.015(2).
A weapon is "deadly" if it is "specifically designed for
and presently capable of causing death or serious physical
injury." ORS 1 6 1 .0 15(2). A weapon is "dangerous" if "under
the circumstances in which it is used," it is "readily capable of
causing death or serious physical injury." ORS 161.015(1).
The second clauses of the two definitions are substantially
similar and defendant does not contend otherwise. It is the
first clause of each definition to which defendant directs our
attention. He argues that the deadly weapon focus on
"design" makes that definition different in its essential
nature from the dangerous weapon focus on "circumstances
of use."
The dichotomy that defendant sees disappears, how
ever, upon close inspection of this particular indictment and
the definition of "deadly weapon." The original indictment
alleged not only that the car was designed to be capable ofuse
in a seriously inj urious fashion, but also that the circum
stances of its use made it capable of causing such injury. The
original indictment alleged that defendant drove the car
"recklessly." A car that is not designed to be capable of caus
ing serious injury and that is, therefore, not a deadly weapon,
nonetheless may be a dangerous one if it is used "recklessly."
State v. Hill, 298 Or 270, 276-77, 692 P2d 100 ( 1984). B efore
it was amended, the indictment also alleged that defendant
caused serious injury to another "under circumstances man
ifesting extreme indifference to the value of human life"-the
precise circumstances of use that make an object dangerous.
Therefore, although the original indictment did not use the
phrase "dangerous weapon," it contained all of the allega
tions that were necessary to make out a charge under that
theory: that defendant drove a car, and did so under circum
stances that made it capable of causing death or serious
physical injury.

Cite as 344 Or 482 493
The original indictment was defective because it
included a "design" allegation when the car was not designed
to be capable of causing serious inj ury. But like the allegation
in Woodson, that additional allegation, although inaccurate,
did not render the indictment insufficient. Including that
extra allegation was not, therefore, a defect of substance. See
also State v. Jewett, 48 Or 577, 586, 85 P 994 ( 1906) ("If the
necessary averments appear in any fform] or may by fair con
struction be found anywhere within the text of the indict
ment, it is sufficient.") (citing US v. Howard, 132 F 325, 334
(Tenn 1904)); State v. Humphreys, 43 Or 44, 48, 70 P 824
( 1902) ( allegation which is "not necessarily descriptive of the
offense may be regarded as surplusage and rejected, without
vitiating the pleading"); State v. Horne, 20 Or 485, 486, 26 P
665 ( 1891) ("mere surplusage" does not render indictment
insufficient). Because the original indictment alleged that
defendant used the car under circumstances that rendered it
capable of causing injury, it already charged the crime of
assault with a dangerous weapon. The amended indictment
did not require defendant to defend against any allegations
that were not already included in the original indictment.
Defendant urges a different result, citing State v.
Russell, 231 Or 317, 372 P2d 770 ( 1962), for his argument
that the defect in the indictment was not one of form. In that
case, the state charged the defendant with stealing " 'a cer
tain yearling Hereford heifer,' " but proved that the defen
dant stole a " 'steer calf.' " Id. at 3 18. The court reversed the
defendant's conviction, holding that the difference was mate
rial because the word "heifer" was the "only statutory word
descriptive of livestock to be found in the indictment." Id. at
320. The dissent disagreed, calling attention to the fact that
the state's allegation that the animal was a yearling Hereford
brought it within the terms of the statute, which forbade the
theft of any calf, whether male or female. Id. at 323-24. A
yearling Hereford is a calf with a white face and red body.
Webster's Third New Int'l Dictionary 1059 (unabridged ed
1961). We agree with the dissent that the state's specification
that the calf was a female, rather than a male, was an unnec
essary, additional recitation, and immaterial to the charge of
stealing livestock.

494 State v. Pachmayr
Although the principle stated in Russell, that "a
defendant cannot be tried for one crime and convicted of
another[,]" 2 3 1 Or at 321, is certainly correct, it is also true
that when an indictment alleges facts that are unnecessary
surplusage, those facts are not essential to the crime and do
not define it. The result in Russell is inconsistent with the lat
ter principle, and we overrule it.
Having determined that the amendment to the orig
inal indictment in this case did not alter its essential nature,
we proceed to consider the second Wimber question, which is
whether the amendment prejudiced defendant's right to
notice of the charges against him to protect against double
j eopardy. The state argues that defendant could not have
been misled or prejudiced by the "scrivener's error" in Count
2, because Counts 1 and 3 put him on notice that the state
was charging that the car he drove was "dangerous" as well
as "deadly." We do not look to the other counts in the indict
ment for the necessary notice. The allegations in Count 2 of
the indictment apprised defendant of the allegations against
which h e ultimately was required to defend.
The amendment also did not prejudice defendant by
depriving him of a defense, contrary to the conclusion
reached by the Court of Appeals. The C ourt of Appeals wrote:
"Although the amendment did not alter the essential
nature of the indictment against defendant, it did alter the
availability to him of a defense. Count 2 charged defendant
with committing assault in the second degree by means of a
deadly weapon. * * * Defendant attempted to defend
against that charge by arguing that the motor vehicle he
was driving did not meet the statutory definition of a deadly
weapon. When the trial court amended Count 2 of the
indictment to allege assault by means of a dangerous
weapon, defendant could no longer avail himself of the
defense, nor effectively present evidence, that his car was
not a deadly weapon."
State v . Pachmayr, 213 Or App 665, 669-70, 162 P3d 347
(2007) (footnotes omitted). That reasoning is flawed. A defen
dant is not necessarily "deprived of a defense," as that phrase
is used in Wimber, when that defense is merely that the state
failed to prove all of the allegations ofthe original indictment.
If that were the case, any amendment to an indictment that

Cite as 344
deleted or changed an allegation would eliminate a defense.
Indeed, Woodson illustrates that principle. In that case, the
indictment charged a completed rape and the district attor
ney amended it to charge only an attempted rape. Under the
Court of Appeals' rationale in the current case, that amend
ment would have deprived the defendant of a defense,
namely, that he did not commit a completed rape. However,
the court in Woodson discerned no such deprivation, and
upheld the amendment. If an amendment eliminates an
independent defense, such as self-defense, that was available
to defend against the original indictment, but becomes una
vailable when the indictment is amended, that amendment
prejudices a defendant within the meaning of the second
Wimber question. But such prejudice does not result when
the defendant is precluded only from arguing that the state
failed to prove allegations that were deleted by the
amendment.3
We are satisfied that, in this case, the grand jury, not
the prosecutor, determined the charge to be brought and
found the facts on which the charge was based. State u. Long,
320 Or 361, 370-7 1, 885 P2d 696 ( 1994) (addressing those
concerns in deciding whether Article VII (Amended), section
5, was violated); Wimber, 3 15 Or at 1 17 (Unis, J., dissenting,
expressing those concerns). The grand j ury's role in the crim
inal process is independent of the district attorney's role, and
serves a critical function in protecting individual liberties.
State u. Burleson, 342 Or 697, 703, 160 P3d 624 (2007). We do
not make assumptions from Counts 1 and 3 about what the
grand jury "actually" intended to charge with regard to
Count 2. In this case we know-without speculating-that
the grand jury, by signing the indictment on Count 2, certi
fied that it found sufficient evidence to charge defendant with
driving a car-an instrument capable of causing death or
serious injury-recklessly, "under circumstances manifest
ing extreme indifference to the value of human life." In so
doing, the grand jury necessarily certified that it found suffi
cient evidence to charge defendant with assault with a dan
gerous weapon on Count 2.
3 The third and fourth Wimber questions address matters that are not o f con
cern in this case or that we h ave already discussed. They do not require further
analysis.

Count 2 of the original indictment in this case con
tained the allegations necessary to charge defendant with
assault with a dangerous weapon. The defect in the indict
ment was a defect in form only, and the trial court did not err
by allowing the district attorney to amend it.
The decision of the Court of Appeals is reversed. The
judgment of the circuit court is affirmed.