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State v. Keith

Court of Appeals of Oregon

October 3, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
DANIEL MORGAN KEITH, Defendant-Appellant.

          Submitted February 26, 2018

          Washington County Circuit Court C150616CR James Lee Fun, Jr., Judge.

          Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Meredith Allen, Deputy Public Defender, Offce of Public Defense Services, fled the brief for appellant.

          Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Rebecca M. Auten, Assistant Attorney General, fled the brief for respondent.

          Before Lagesen, Presiding Judge, and DeVore, Judge, and James, Judge.

         Case Summary:

         Defendant appeals a judgment of conviction for robbery in the third degree, ORS 164.395; interfering with making a report, ORS 165.572; theft in the third degree, ORS 164.043; and possession of methamphetamine, ORS 475.894. Defendant assigns error to the trial court's denial of his demurrer and motion to sever, arguing that his possession charge should not have been joined with the other charges because the joinder fails to meet the requirements described in ORS 132.560(1)(b)(C). The state contends that joinder was proper because the crimes arose out of transactions that were "connected together" under that statute. Held: Joinder was improper because there are no acts or transactions underlying the possession charge and the other charges that are "connected together" or constitute "parts of a common scheme" under ORS 132.560(1)(b)(C).

         [294 Or.App. 266] JAMES, JUDGE

         In this criminal appeal, the state charged defendant with 11 counts spanning separate dates between November 22, 2014 and January 19, 2015. In relation to an alleged incident of domestic violence that occurred on November 22, 2014, the state charged defendant with three counts of assault in the second degree, ORS 163.175 (Counts 1-3); and two counts of unlawful use of a weapon, ORS l66.22O(1)(a) (Counts 4-5). In relation to a separate alleged instance of domestic violence on January 18, 2015, the state charged defendant with robbery in the third degree, ORS 164.395 (Count 6); assault in the fourth degree, ORS 163.160 (Count 7); interference with making a report, ORS 165.572 (Count 8); and theft in the third degree, ORS 164.043 (Count 9). In another alleged incident, one not involving allegations of domestic violence, that occurred on January 19, 2015, the state charged defendant with unlawful possession of methamphetamine, ORS 475.894 (Count 10). Finally, for conduct that was alleged to have occurred between November 22, 2014 and January 19, 2015, defendant was charged with tampering with a witness, ORS 162.285 (Count 11). The jury ultimately convicted defendant on Counts 6, 8, 9, and 10.[1]

         Defendant appeals from his conviction of robbery in the third degree (Count 6), ORS 164.395; interfering with making a report (Count 8), ORS 165.572; theft in the third degree (Count 9), ORS 164.043; and possession of methamphetamine (Count 10), ORS 475.894. Defendant assigns error to the court's denial of his demurrer and motion to sever. In particular, he argues that Count 10, possession of methamphetamine, should not have been joined with Counts 6, 8, and 9, because the joinder of Count 10 does not meet the requirements described in ORS l32.56O(1)(b)(C), which provides:

"(1) A charging instrument must charge but one offense, and in one form only, except that:
[294 Or.App. 267] "(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 the same person or persons and are:
''* * * *
"(C) Based on two or more acts or transactions connected together or constituting parts of a common scheme ...

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