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State v. Page

Court of Appeals of Oregon

February 28, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
DANIEL LEE PAGE, Defendant-Appellant.

          Submitted September 27, 2017

         Linn County Circuit Court 14CR08812, David E. Delsman, Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and David Sherbo-Huggins, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, fled the brief for respondent.

          Before Ortega, Presiding Judge, and Garrett, Judge, and Powers, Judge.

         Case Summary: Defendant appeals from a judgment of conviction entered after he conditionally pleaded no contest to delivery of marijuana to a minor, possession of methamphetamine, felon in possession of a firearm, felon in possession of a restricted weapon, and endangering the welfare of a minor. Defendant argues that the trial court erred by denying his demurrer because the indictment did not substantially conform to the requirements of ORS 132.560. Held: The trial court erred in denying defendant's demurrer. The indictment neither alleged joinder in the language of ORS 132.560 nor "facts sufficient to establish compliance with the joinder statute." State v. Poston, 277 Or.App. 137, 145, 370 P.3d 904 (2016), adh'd to on recons, 285 Or.App. 750, 399 P.3d 488, rev den, 361 Or. 886 (2017).

         Reversed and remanded.

         [290 Or.App. 563] POWERS, J.

         Defendant appeals from a judgment of conviction entered after a conditional no-contest plea for delivery of marijuana to a minor, former ORS 475.860(4)(a) (2014), repealed by Or Laws 2017, ch 21, § 126; possession of meth-amphetamine, ORS 475.894; felon in possession of a firearm, ORS 166.270(1); felon in possession of a restricted weapon, ORS 166.270(2); and endangering the welfare of a minor, ORS 163.575(2). Defendant argues that the trial court erred by denying his demurrer because the indictment did not conform with ORS 132.560, which requires that a charging instrument meet certain conditions when more than one offense is charged. We conclude that the trial court erred in denying defendant's demurrer. Consequently, we reverse and remand.

         We review for legal error the trial court's denial of a demurrer to an indictment. State v. Marks, 286 Or.App. 775, 780, 400 P.3d 951 (2017).

         The indictment in this case includes charges stemming from a report that defendant gave marijuana to his daughter, K. Officers responded to the report, which eventually led to the search of defendant's home and the discovery of marijuana, methamphetamine, and weapons.

         Defendant was indicted as follows:

"COUNT 1. The defendant, on or between January 1, 2014 and June 4, 2014, in Linn County, Oregon, did unlawfully and knowingly deliver marijuana to a person under 18 years of age and the defendant was at least 18 years of age and at least three years older than the person to whom the marijuana was delivered;
"COUNT 2. The defendant, on or about June 4, 2014, in Linn County, Oregon, did unlawfully and knowingly possess ...

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