Submitted on December 28, 2012.
Lincoln County Circuit Court 102095, 102785, Sheryl Bachart, Judge.
Peter Gartlan, Chief Defender, and Lindsey K. Detweiler, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
John R. Kroger, Attorney General, Anna M. Joyce, Solicitor General, and Pamela J. Walsh, Assistant Attorney General, filed the brief for respondent.
Before Schuman, Presiding Judge, and Wollheim, Judge, and Nakamoto, Judge.
In this consolidated criminal appeal, defendant appeals judgments of conviction for assaulting a public safety officer, ORS 163.208, resisting arrest, ORS 162.315, second-degree disorderly conduct, ORS 166.025, and second-degree criminal mischief, ORS 164.354. On appeal, defendant raises three assignments of error. He argues that the trial court erred in (1) granting the state's motion to consolidate, (2) denying defendant's requested jury instruction that the verdict must be unanimous, and (3) entering a judgment of conviction based on a nonunanimous jury verdict. We reject defendant's second and third assignments of error based on the reasoning of State v. Bowen, 215 Or.App. 199, 168 P.3d 1208 (2007), adh'd to as modified on recons, 220 Or.App. 380, 185 P.3d 1129 (2008), rev den, 345 Or 415, cert den, 558 U.S. 815 (2009). However, for the reasons that follow, we conclude that the trial court erred in granting the state's motion to consolidate, and we reverse and remand the judgment of conviction for criminal mischief in the second degree; otherwise we affirm.
The facts relevant to this appeal are as follows. After an altercation with three Newport police officers in May 2010, defendant was charged in a single indictment (Case Number 102095) with assaulting a public safety officer (Count 1), criminal mischief in the second degree (Count 2), resisting arrest (Counts 3-5), and disorderly conduct in the second degree (Count 6). The case was set for trial on July 22, 2010. The day before trial, the state notified the court and defendant that the state had mispleaded Count 2 in the indictment. As pleaded in the indictment, Count 2 alleged that defendant had "unlawfully and recklessly damage[d] a police radio * * * in an amount exceeding $100." However, the second-degree criminal mischief statute in effect at the time of the altercation required proof of damage in an amount exceeding $500. The next day--the day set for trial--the state moved to amend the indictment to correct the dollar amount in Count 2. The trial court denied that motion. In the alternative, the state moved to dismiss Count 2 from the indictment, to file an information charging defendant with one count of criminal mischief in the second degree using the correct statutory language, to arraign defendant on that charge, and to consolidate the two cases and proceed in one trial that same day.
Defendant objected to that series of motions, arguing that (1) they were merely an end-run around the court's denial of the state's motion to amend, (2) the motion to consolidate was not timely, and (3) defendant would be unfairly prejudiced by the consolidation. In his objection, defendant explained to the court that he had caught the mistake in the indictment and intended to file a motion in arrest of judgment at the end of trial if the jury convicted him on that count. He further argued that he was not prepared to defend against the allegation that he had damaged the radio in an amount exceeding $500 and that, had that originally been pleaded, he might have proceeded differently in his defense. Despite those arguments, however, the trial court granted the motions and concluded that defendant was not substantially prejudiced by the consolidation. Defendant was then charged by information with criminal mischief in the second degree (Case Number 102785), arraigned, and tried that same day in a consolidated trial of Case Numbers 102095 and 102785. The jury found defendant guilty of all charges.
On appeal, defendant argues that the trial court improperly granted the state's motion to consolidate. Defendant contends that the trial court erred in three ways when it granted the state's motion: (1) the state's motion to consolidate was untimely; (2) even if timely, the motion substantially prejudiced defendant under ORS 132.560(3); and (3) the consolidation of defendant's cases violated due process. We need not reach defendant's second and third arguments, as we agree that the state's motion was untimely; we therefore conclude that it was improper for the trial court to consolidate the cases.
The parties agree that this case turns on the proper application of ORS 132.560, which outlines the situations in which charges and charging instruments can be joined or consolidated. That statute provides, in part:
"(1) A charging instrument must charge but one offense, and in one form only, except that:
"* * * * *
"(b) Two or more offenses may be charged in the same charging instrument in a separate count for each offense if the offenses charged are alleged to have been committed ...