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State v. Poston

Court of Appeals of Oregon

June 1, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
LATRELL EARVIN POSTON, Defendant-Appellant.

          Multnomah County Circuit Court 120431530; A152933 Jean Kerr Maurer, Judge.

         On respondent's petition for reconsideration fled April 26, 2016. Opinion fled March 30, 2016. 277 Or.App. 137, 370 P.3d 904 (2016).

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, for respondent's petition.

          Before Armstrong, Presiding Judge, and Egan, Judge, and Shorr, Judge.

         Case Summary: The state has petitioned for reconsideration of the Court of Appeals' decision in this case in which the court held that ORS 132.560 requires the state to allege in a charging instrument the basis for joinder of the crimes charged in it. The state contends that the court erred in its construction of the statute and in its disposition of the case. Held: An indictment that fails to include an appropriate basis for joinder-either by including the applicable statutory language that authorizes the state to join the charges in a single indictment or by alleging facts suffcient to establish compliance with the joinder statute-is not one that shows on its face that the charges in it have been lawfully joined and, hence, is an indictment that can be successfully challenged by demurrer. Next, notwithstanding conficts in the federal circuit courts about the pleading requirement imposed by the federal joinder rule-a rule that served as a model for the 1989 amendment of the Oregon joinder statute-the Oregon legislature did not intend the amendment of the joinder statute to alter the preexisting requirement that the basis under which charges are joined must be alleged in the charging instrument. Finally, because the charges were not lawfully joined in the indictment, defendant was prejudiced by proceeding to trial on charges of promoting prostitution and identity theft that were not lawfully joined for trial.

         Reconsideration allowed; former opinion adhered to.

         [285 Or.App. 751] ARMSTRONG, P. J.

         The state has petitioned for reconsideration of our decision in this case in which we held that ORS 132.560 requires the state to allege in a charging instrument the basis for joinder of the crimes charged in it. State v. Poston. 277 Or.App. 137, 144-45, 370 P.3d 904 (2016). It contends that we erred in our construction of the statute and in our disposition of the case. We grant the state's petition but adhere to our decision on reconsideration.

         As we recognized in our original opinion, ORS 132.560 specifies the grounds on which charges may be joined in a charging instrument. The requirements that the statute imposes for joinder, in turn, are enforceable by demurrer under ORS 135.630(2), which tests whether an indictment shows on its face that the joinder requirements have been met. Taken together, those provisions specify what the state must allege in an indictment to show that the charges contained in it have been lawfully joined.

         In that light, we readily reject the state's contention on reconsideration that we misunderstood State v. Huennekens, 245 Or. 150, 420 P.2d 384 (1966). The court held in Huennekens that an indictment that joined rape and sodomy charges against the defendant survived a demurrer because the indictment alleged that the charges were part of the same act and transaction, which is one of the grounds in ORS 132.560 under which charges can be joined. See id. at 154. In the state's view, Huennekens established that an allegation that shows that the joinder requirements have been met is sufficient to show that the charges have been lawfully joined under ORS 132.560, but the case did not establish that such an allegation is necessary to show that the charges have been lawfully joined.

         The state's argument ignores that the legislature made ORS 132.560-the statute that specifies the grounds under which charges may lawfully be joined-a statute that is subject to challenge by demurrer under ORS 135.630(2). The demurrer statute, in turn, serves to test whether an indictment shows on its face that it conforms with the requirements of the statutes that are subject to challenge by demurrer. See ORS 135.630(2); State v. Molver. 233 Or [285 Or.App. 752] App 239, 243-49, 225 P.3d 136, rev den, 348 Or. 291 (2010). An indictment that is silent on whether the requirements for joinder specified in ORS 132.560 have been met cannot be said to be one that shows on its face that it conforms with those requirements.

         As Huennekens held, one way to show compliance with the joinder statute is to include in the indictment the applicable statutory language that authorizes the state to join the charges in a single charging instrument. As we recognized in our original opinion, another way to do that is to allege facts in the indictment sufficient to establish compliance with the joinder statute. Poston, 277 Or.App. at 145-46. However, as we held, an indictment that does neither of those things is not one that shows on its face that the charges in it have been lawfully joined and, hence, is an indictment that can be successfully challenged by demurrer.

         The state also contends that we erred in our understanding of the federal rule that the Oregon legislature emulated when it amended ORS 132.560 in 1989, FRCrP 8. In construing the 1989 amendment, we relied on federal cases that predated the amendment, which we understood to have established that the government is required to allege in the charging instrument the basis on which the charges have been lawfully joined. Poston, 277 Or.App. at 144. According to the state, we erred in relying on the cited cases for that principle because the cases involved the propriety of joinder under FRCrP 8(b)-which governs the joinder of defendants-and not the propriety of joinder under FRCrP 8(a)-which governs the joinder of charges. In its view, the federal courts have distinguished between FRCrP 8(a) and FRCrP 8(b) regarding the pleading requirements that they impose, and we erred in failing to recognize that distinction.

         Although the cases on which we relied that predated the 1989 amendment happened to have involved joinder under FRCrP 8(b) rather than under FRCrP 8(a), the principle that the cases established-viz., that the propriety of joinder is determined by the allegations in the charging instrument-was not limited to FRCrP 8(b) and did not turn on the language of that rule. The cases based their discussion of the pleading requirement for joinder on FRCrP [285 Or.App. 753] 8, that is, on the rule that governs joinder, and not on the specific requirements of either of the subdivisions of the rule. See United States v. Lane,474 U.S. 438, 447, 106 S.Ct. 725, 88 L.Ed.2d 814 (1986); United ...


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