Background
Timothy Zane Heward was charged with two counts of second-degree robbery after shoplifting incidents at a Fred Meyer and a Walmart in Linn County. In each instance, when loss-prevention employees confronted him, he reached toward his pocket or waistband as if armed and said, “Is this worth dying over?” Second-degree robbery under Oregon law requires, among other things, that the defendant “use or threaten the immediate use of physical force” while committing theft. ORS 164.395(1); ORS 164.405. The indictments, however, charged only that Heward “used and threatened the use of physical force”—omitting the word “immediate.”
On the morning of trial, the prosecutor moved to amend the indictment by interlineation, characterizing the omission as a “scrivener’s error” and representing that she had correctly explained the law to the grand jury. The prosecutor acknowledged the same grand jury was still sitting and could return a corrected indictment the next day, but questioned whether delaying trial for “such a minor amendment” was worthwhile. Over defendant’s objection, the trial court allowed the amendment, finding the original indictment “defective in form.” The Court of Appeals affirmed, reasoning the trial court was entitled to accept the prosecutor’s scrivener’s-error explanation and that the amendment served “the express purpose of prosecuting the exact crime that the grand jury had in mind.”
The Oregon Supreme Court granted review to decide whether the omission of an allegation essential to a statutory charge—here, the word “immediate” before “use of physical force”—renders an indictment “defective in form” amendable by the district attorney under Article VII (Amended), section 5(6) of the Oregon Constitution, or whether it is instead a substantive defect requiring renewed grand jury consideration.
The Court’s Holding
The court reversed, holding unanimously that the missing allegation was a defect in substance, not form, and therefore beyond the reach of a unilateral district attorney amendment. Under Article VII (Amended), section 5(6), a district attorney may amend an indictment with court approval—without returning to the grand jury—only when the indictment is “defective in form,” meaning the defect is not essential to the charge. Because the threat of immediate use of physical force is the statutory element that distinguishes robbery from the lesser offense of theft by extortion, its omission went to the heart of the charge. The court traced this rule to State v. Moyer, 76 Or 396 (1915), and confirmed it in State v. Pachmayr, 344 Or 482 (2008), and State v. Haji, 366 Or 384 (2020): allegations essential to the crime as defined by statute are matters of substance, and their absence may not be cured by prosecutorial amendment.
The court also distinguished its prior cases in which amendments were permitted. Those cases—Wimber, Woodson, Pachmayr, and Haji—each involved defects that were not apparent on the face of the indictment, or involved indictments that already contained all the facts essential to the charge with only extra or inaccurate language to be trimmed or corrected. Here, by contrast, the defect was apparent on the face of the indictment: an indictment alleging only “threatened use of physical force” plainly fails to allege second-degree robbery as defined by statute. No examination of extrinsic facts was needed, and the four-part Wimber analysis—designed for non-facial defects—had no application. Because the trial itself proceeded on the threatened-force theory and the error was not harmless, the convictions on the two robbery counts could not stand.
Key Takeaways
- Under Article VII (Amended), section 5(6) of the Oregon Constitution, a district attorney may amend an indictment without grand jury resubmission only for formal defects—those not essential to the charge; omitting a statutory element essential to the crime is a substantive defect that requires the grand jury.
- When a defect is apparent on the face of the indictment (as opposed to revealed only by extrinsic facts), courts must apply the Moyer/Pachmayr facial-defect rule, not the four-part Wimber test; a prosecutor’s characterization of the omission as a “scrivener’s error” does not convert a substantive defect into a formal one.
- The word “immediate” in ORS 164.395(1) is an essential element of robbery—distinguishing it from theft by extortion—so its omission from an indictment is fatal to prosecution on that theory without a corrected indictment returned by a grand jury.
- The fact that obtaining a corrected indictment would have been administratively simple (the same grand jury was available the next day) is irrelevant to the constitutional analysis; convenience does not expand prosecutorial authority to amend indictments.
Why It Matters
Heward reinforces the Oregon grand jury’s constitutional role as a check on prosecutorial charging power and draws a bright line for practitioners: when an indictment facially omits a statutory element—no matter how obvious or easy to fix—the only constitutionally permissible path is resubmission to a grand jury, not a morning-of-trial amendment by interlineation. Trial courts that allow such amendments commit reversible legal error.
The decision also serves as a practical reminder that while Oregon’s indictment-amendment procedure can efficiently correct genuine clerical errors (misspelled names, transposed dates, surplus language), it cannot be used to supply missing elements that the prosecutor believes the grand jury implicitly understood. Defense counsel facing last-minute indictment amendments should scrutinize whether the missing allegation was essential to the statutory offense and, if so, object on Article VII (Amended), section 5(6) grounds.