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State v. Carter

Court of Appeals of Oregon

December 5, 2018

STATE OF OREGON, Plaintiff-Respondent,
v.
HAROLD WALTER CARTER, Defendant-Appellant.

          Argued and Submitted January 19, 2017

          Multnomah County Circuit Court 14CR29528 Edward J. Jones, Judge.

          Lindsey J. Burrows, Deputy Public Defender, argued the cause for appellant. On the brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Lindsey K. Detweiler, Deputy Public Defender, Offce of Public Defense Services.

          Keith L. Kutler, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

          Before Ortega, Presiding Judge, and Egan, Chief Judge, and Allen, Judge pro tempore.

         Case Summary:

         Defendant appeals a judgment of conviction for unlawful possession of cocaine, ORS 475.884, and second-degree criminal mischief, ORS 164.354. Defendant assigns error to the trial court's denial of his demurrer to the indictment, contending that the charges were improperly joined under ORS 132.560 because the indictment did not reflect any connection between the charges. The state responds that, because the indictment alleges that the charges took place on the same day and in the same county, there were facts sufficient to meet the requirements of ORS 132.560. Held: The trial court erred in denying defendant's demurrer. The mere facts that the offenses occurred on the same day and in the same county are insufficient bases for joinder. The error was not harmless.

         Reversed.

         [295 Or.App. 146] EGAN, C. J.

         Defendant appeals a judgment convicting him of unlawful possession of cocaine, ORS 475.884, and second-degree criminal mischief, ORS 164.354. Those charges arose out of acts committed by defendant on the same day, but the indictment did not reflect any connection between the charges. Defendant assigns error to the trial court's denial of his demurrer to the indictment, contending that the charges were improperly joined. Alternatively, defendant assigns error to the trial court's failure to sever the improperly joined charges. We agree that the trial court erred in denying defendant's demurrer and conclude that the error was not harmless. Thus, we reverse defendant's conviction on both counts and do not reach defendant's second assignment of error.

         A defendant may demur to an indictment for improper joinder of charges when the indictment fails to substantially conform to the requirements of ORS 132.560 (1)(b).[1] We review the denial of a demurrer for legal error. State v. Walsh, 288 Or.App. 331, 332, 406 P.3d 152 (2017). To conform with the statutory requirements, an indictment "must show on its face" that the requirements of ORS 132.560(1)(b) have been met. State v. Poston, 277 Or.App. 137, 143, 370 P.3d 904 (2016), adh'd to on recons, 285 Or.App. 750, 399 P.3d 488, rev den, 361 Or. 886 (2017) (emphasis in original). Thus, we begin by examining the relevant text of the indictment:

         "COUNT 1

         "UNLAWFUL POSSESSION OF COCAINE

         "[Defendant], on or about December 02, 2014, in the County of Multnomah, State of Oregon, did unlawfully and intentionally ...


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