Multnomah County Circuit Court 120431530; A152933 Jean Kerr
respondent's petition for reconsideration fled April 26,
2016. Opinion fled March 30, 2016. 277 Or.App. 137, 370 P.3d
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Timothy A. Sylwester, Assistant Attorney
General, for respondent's petition.
Armstrong, Presiding Judge, and Egan, Judge, and Shorr,
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.
allowed; former opinion adhered to.
Or.App. 751] ARMSTRONG, P. J.
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.
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.
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.
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.
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
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.
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 ...