Submitted May 19, 2015
County Circuit Court 120733023 Edward J. Jones, Judge.
Gartlan, Chief Defender, and Ingrid A. MacFarlane, Deputy
Public Defender, Offce of Public Defense Services, fled the
brief for appellant.
F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor
General, and Michael S. Shin, Assistant Attorney General,
fled the brief for respondent.
Tookey, Presiding Judge, and DeHoog, Judge, and Edmonds,
and remanded for entry of judgment allowing demurrer.
Summary: Defendant appeals from an amended judgment of
conviction entered after a trial court found defendant guilty
of one count of compelling prostitution, ORS 167.017(1), one
count of felon in possession of a frearm, ORS 166.270(1), and
two counts of unlawful use of a weapon with a frearm, ORS
166.220(1). He assigns error to the trial court's
disallowance of his demurrer to the indictment, arguing that
the indictment was legally defective because it did not
allege a basis for joining multiple counts in a single
indictment as required by ORS 132.560. Held: The
trial court erred in disallowing defendant's demurrer,
and the error was not harmless.
and remanded for entry of judgment allowing demurrer.
Or. 776] TOOKEY, P. J.
appeals from an amended judgment of conviction entered after
a trial court found defendant guilty of one count of
compelling prostitution, ORS 167.017(1), one count of felon
in possession of a firearm, ORS 166.270(1), and two counts of
unlawful use of a weapon with a firearm, ORS 166.220(1). He
assigns error to the trial court's disallowance of his
demurrer to the indictment, arguing that the indictment was
legally defective because it did not allege a basis for
joining multiple counts in a single indictment as required by
ORS 132.560. We conclude that the trial court erred in
disallowing defendant's demurrer, and we also conclude
that the error was not harmless. Consequently, we reverse and
remand for entry of judgment allowing demurrer.
crimes on which defendant was indicted involved the same
victim, C. Defendant was convicted after a bench trial on
stipulated facts, which consisted primarily of police
reports, some photographs related to the prostitution charge
against defendant, and copies of text messages that defendant
had sent to C. The following facts are taken from the police
approximately seven and one-half months, from mid-June 2011
through late January 2012, defendant and C had a sexually
intimate relationship in which defendant gradually exerted
more and more emotional and physical control over C. They
first met each other via an online dating service, and upon
meeting each other face-to-face, their relationship
progressed rapidly. Shortly after they began dating,
defendant began pressuring C to try stripping or advertising
herself online as an escort, explaining that he could not
work because of a brain injury and that he needed money.
Although C offered to get a second job to help defendant,
defendant said that C would not make money fast enough at a
second job. He told C that she should trust him and that if
she disagreed with him about stripping or working as an
escort, their relationship "would not work out."
resisted defendant's efforts to get her to work as an
escort until late September, when defendant informed C that
his sister, with whom defendant resided, had received a
72-hour eviction notice. Explaining that he, his sister, and
[286 Or. 777] her children would be evicted, he asked C to
help pay his sister's rent by being an escort. C agreed.
Defendant, using his sister's laptop and C's
bankcard, posted an advertisement for C's escort services
on an online site called "Backpage." That weekend,
C had three "service calls, " each of which
involved the exchange of money for sexual intercourse.
Defendant transported C to the appointments, and C gave
defendant the money that she had received at each of the
appointments. After the last appointment, defendant told C
that she would never have to act as an escort again.
promise, however, was soon broken. Defendant convinced C to
move out of her parent's home and lease her own
apartment. By mid-October, defendant had moved in with C, and
defendant again began to talk about the need for more money,
explaining that C's regular job did not provide
sufficient funds to live comfortably and in a way that suited
him, so she should again advertise herself online as an
C at first refused to work again as an escort, she finally
relented, and from November until late January, C spent most
weekends earning extra money "doing jobs." C would
receive requests for services on her cell phone and defendant
would listen to the conversation via speakerphone and tell C
how to respond. Defendant would drive with C to the
appointments and sometimes take her cell phone to monitor the
requests for, and responses about, her services as an escort.
Defendant also took control over C's finances. Defendant
had no bank account of his own, but kept C's bankcard and
had access to all of her money.
explained to police officers that she did not want to work as
an escort and engage in prostitution, but she had a hard time
refusing defendant's demand that she continue to do so. C
said she tried to explain to defendant her humiliation and
insecurity in participating in the escort dates, but
defendant would get upset and argue with her and sometimes
physically assault her. In November, while driving with
defendant, C told defendant that she did not want to continue
engaging in prostitution because she felt "taken
advantage of and used, " and defendant hit her on the
face with his open hand. However, defendant's assaults
were not [286 Or. 778] limited to instances when C would
express concerns about engaging in prostitution. He would
regularly pull her hair to drag her closer to him or pin her
arms down on the bed with enough strength that it would leave
bruises on her arms.
became the most volatile when C would confront him about his
contact with other women. One day in December, C confronted
defendant about the women that she had discovered he was
contacting online. C said there was "pushing and
shoving" after she confronted him, and then defendant
pulled out a gun and, holding it at his side, told C that he
wanted her to "cooperate in communicating with
January 20, 2012, defendant found C searching their computer
for signs of his online contacts with other women. He began
punching C on the arms, and when C told defendant that she
was going to leave because "I know what I'm worth,
" defendant hit her on the head, pushed her onto the
bed, and began choking her. Defendant calmed down enough to
briefly let C go, but returned with his gun. Pointing the gun
at C, defendant told her to explain how she had been
"digging around" on the internet. C explained how
she had searched for the information on the computer. As C
did so, defendant placed the gun against her head. Terrified,
C urinated on herself; she heard him "rack the gun"
and believed it was loaded. Defendant then handed the gun to
C and told her to point it at him. Defendant told C that, if
she did not point the gun at him, he would "put his
hands on her." C took the gun, but did not point it at
him. Defendant continued to goad her, stating, "If
I'm such a horrible person, why not shoot me?"
Eventually, defendant calmed down, let C go, and told C that
"she needs to do what he tells her to do." Later
that night, C went out and did an escorting job. After C had
returned from the escort appointment, she went to the
bathroom to brush her teeth because she had performed oral
sex on the client, and she started crying. Defendant heard C
crying and told C to "get over it." When C did not
stop crying, defendant kicked her into the bathtub, telling
her to "hurry up and take a bath."
January 25, 2012, defendant again became angry when he
learned that C had contacted one of the women [286 Or. 779]
whom defendant had been contacting online. He retrieved his
gun and pointed it at C. Defendant stated, "If you
don't tell me the truth, I'll pop you one in the
head!" Defendant hit C, threw her to the ground, kicked
her, and pointed the gun at her again, telling her that if
she was lying to him, he really would shoot her. C believed
that defendant would kill her, and in her terror, she
urinated on herself again. Defendant, seeing that C had wet
herself, told her to take her "filthy clothes off."
As C was cleaning up the urine, defendant calmed down, placed
the gun on a chest at the end of the bed, and began looking
at C's phone for any new "dates."
went to the kitchen on the pretense of finding some cleaning
supplies and, as defendant was distracted by texting or doing
something on her phone, C fled the apartment. Shoeless and
coatless, C ran out to the street and saw that defendant had
come outside to look for her. Eventually, C was able to flag
down a motorist who took C to a safe location. C contacted
the police and defendant was arrested the next day.
state brought one indictment against defendant, alleging 17
counts of various crimes, including, inter alia,
compelling prostitution, promoting prostitution, felon in
possession of a firearm, coercion, menacing, unlawful use of
a weapon with a firearm, and assault in the fourth degree.
Defendant then filed a demurrer to the indictment, arguing
that the state had failed to allege the bases for joining
multiple counts in one indictment, as required by ORS
132.560. After a hearing on the motion, the trial court
disallowed the demurrer.
state and defendant then agreed that the state would dismiss
all but four of the counts against defendant and that
defendant would be tried by the court on the remaining
counts, stipulating to the police reports and other police
records as the facts on which defendant would be tried. The
court found defendant guilty of the four remaining counts:
compelling prostitution (Count 1), ORS
167'.01/'(1); felon [286 Or. 780] in possession of a
firearm (Count 2), ORS 166.270(1); and unlawful use of a weapon
(Counts 7 and 13), ORS 166.220.Defendant appeals from the amended
judgment of conviction and assigns error to the court's
denial of his demurrer.
review the denial of a demurrer for errors of law. State
v. Woodall. 259 Or.App. 67, 69, 313 P.3d 298 (2013),
rev den, 354 Or. 735 (2014) (citing State v.
Cervantes. 232 Or.App. 567, 580, 223 P.3d 425 (2009)).
The issue we are asked to determine is whether the indictment
was legally insufficient under the provisions of ORS 132.560.
ORS 132.560 provides, in pertinent 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 by