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State v. Marks

Court of Appeals of Oregon

July 19, 2017

STATE OF OREGON, Plaintiff-Respondent,
v.
DONTAE LAMAR MARKS, Defendant-Appellant.

          Submitted May 19, 2015

         Multnomah County Circuit Court 120733023 Edward J. Jones, Judge.

          Peter Gartlan, Chief Defender, and Ingrid A. MacFarlane, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael S. Shin, Assistant Attorney General, fled the brief for respondent.

          Before Tookey, Presiding Judge, and DeHoog, Judge, and Edmonds, Senior Judge.

         Reversed and remanded for entry of judgment allowing demurrer.

         Case 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.

         Reversed and remanded for entry of judgment allowing demurrer.

         [286 Or. 776] TOOKEY, P. J.

         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 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.

         The 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 reports.

         For 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."

         C 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.

         Defendant's 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 escort.

         Although 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.

         C later 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.

         Defendant 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 him."

         On 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."

         On 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."

         C then 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.

         The 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.

         The 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);[1] felon [286 Or. 780] in possession of a firearm (Count 2), ORS 166.270(1);[2] and unlawful use of a weapon (Counts 7 and 13), ORS 166.220.[3]Defendant appeals from the amended judgment of conviction and assigns error to the court's denial of his demurrer.

         We 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 ...

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