and Submitted June 13, 2018
review from the Court of Appeals. (CC C130904CR) (CA A156423)
G. Lannet, Chief Defender, Offce of Public Defense Services,
Salem, argued the cause and fled the briefs for the
petitioner on review.
Timothy A. Sylwester, Assistant Attorney General, Salem,
argued the cause and fled the brief for the respondent on
review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
Summary: Defendant was charged with multiple offenses in a
single indictment. Defendant demurred to the indictment on
the ground that it did not allege the basis for joining the
charges. The trial court disallowed the demurrer, the case
proceeded to a jury trial, and defendant was convicted.
Defendant appealed, and the Court of Appeals affirmed.
Held: (1) an indictment that charges more than one
offense must allege the basis for joinder of the offenses;
and (2) any error in the indictment did not affect
defendant's "substantial rights," as required
for reversal under former ORS 138.230 (2015).
Or. 106] In this criminal case, defendant was charged with
multiple offenses in a single indictment. Defendant demurred
to the indictment on the ground that it did not allege the
basis for joining the charges. The trial court disallowed the
demurrer, the case proceeded to a jury trial, and defendant
was convicted. Defendant appealed, and the Court of Appeals
held that an indictment that charges a defendant with more
than one offense must allege the basis for joining the
charges, but that any error in the indictment in this case
was harmless. State v. Warren, 287 Or.App. 159, 399
P.3d 1060 (2017). For the reasons explained below, we affirm.
relevant facts are procedural. A grand jury issued an
indictment charging defendant with seven offenses.
Specifically, the indictment charged defendant with two
counts of unlawfully obtaining public assistance, in
violation of ORS 411.630 (Counts 1 and 2); one count of
unlawfully obtaining food stamps, in violation of ORS 411.840
(Count 3); one count of theft in the first degree, in
violation of ORS 164.055 (Count 4); and three counts of
unsworn falsification, in violation of ORS 162.085 (Counts 5,
6, and 7). The indictment alleged that some of the offenses
were committed during date ranges and others were committed
on specific dates. The date ranges and dates overlapped and
spanned eleven months. The indictment did not allege that the
offenses were related in any of the three ways required by
the joinder statute, ORS 132.560. That is, it did not allege
that they were "[o]f the same or similar
character," "[b]ased on the same act or
transaction," or "[b]ased on two or more acts or
transactions connected together or constituting parts of a
common scheme or plan." ORS 132.560(1)(b).
Or. 107] Defendant filed a demurrer to the indictment,
pursuant to ORS 135.630(2), which authorizes a defendant to
demur to an indictment on the ground that "it does not
substantially conform to the requirements" of certain
statutes, including the joinder statute, ORS 132.560. In his
demurrer, defendant asserted that the indictment violated the
joinder statute because it failed to allege the basis for
joinder of the charges. Specifically, defendant asserted,
"[T]he indictment merely lists each offense using the
words of the statute without stating that the various charges
are sufficiently similar or connected. Thus, the indictment
on its face fails to meet the joinder requirements of ORS
trial court held a hearing on defendant's demurrer,
during which the state asserted that the indictment alleged
the basis for joinder. According to the state,
[364 Or. 108] "going strictly from the four corners of
the document, it's obvious that * * * all seven counts
are involved with using some false or fraudulent methodology
to obtain benefits. *** [B]ased on that alone, the seven acts
are enough of a same or similar character to allow for
trial court disallowed the demurrer. See ORS 135.660
("Upon considering the demurrer, the court shall give
judgment, either allowing or disallowing it, and an entry to
that effect shall be made in the register.")
did not make any other challenges to the joinder of the
charges. He did not assert that the evidence, as it became
known to him through discovery and trial, was insufficient to
support joinder. And he did not assert that, even if the
evidence was sufficient, joinder resulted in substantial
prejudice. He did not move to sever the charges or to have
the state elect between them.
trial, the state presented evidence that, after defendant was
terminated from his position as a Beaverton police officer in
January 2011, he applied for food stamp benefits, which he
then received through December 2011. During that time period,
defendant moved to Washington, but he did not inform the
benefits agency of the move and, after the move, he completed
two benefits forms on which he listed an Oregon address as
his residence. In October 2011, defendant was reinstated to
his police officer position and received back pay, but did
not report the back pay to the benefits agency. After being
reinstated, defendant completed an "affidavit of
marriage or domestic partnership," listing his
girlfriend as a co-beneficiary of his employment benefits. In
the affidavit, defendant stated that he was not married,
which was false, because he was still married to his
jury found defendant not guilty of two of the unsworn
falsification counts (Counts 5 and 6), which were based on
his listing the Oregon address as his residence on the two
benefits forms, and guilty of the remaining five counts
(Counts 1-4 and 7).
appealed, assigning error to the trial court's
disallowance of his demurrer. In support of that [364 Or.
109] assignment, he relied on the Court of Appeals'
decision in State v. Poston, 277 Or.App. 137, 370
P.3d 904 (2016) (Poston I), adh'd to on recons,
285 Or.App. 750, 399 P.3d 488 (Poston II), rev den,
361 Or. 886 (2017), which was issued after his trial.
Poston I, the Court of Appeals ruled that the state
is "required to allege in the charging instrument the
basis for the joinder of the crimes that are charged in it,
whether by alleging the basis for joinder in the language of
the joinder statute or by alleging facts sufficient to
establish compliance with the joinder statute."
Poston I, 277 Or.App. at 144-45. Because the
indictment in Poston I did not comply with that
requirement, the Court of Appeals held that the trial court
had erred by disallowing the defendant's demurrer to the
indictment. Id. at 145. The Court of Appeals then
considered whether the error required reversal. In doing so,
it applied Article VII (Amended), section 3, of the Oregon
Constitution, which provides that an appellate court shall
affirm a trial court's judgment, notwithstanding any
error committed during the trial, if the appellate court is
of the opinion that the judgment "was such as should
have been rendered." To determine whether the error was
"harmless" for the purposes of Article VII
(Amended), section 3, the Court of Appeals focused on the
effect of the joinder on the jury's verdict. Poston
I, 277 Or.App. at 145-46; see State v. Davis,
336 Or. 19, 33, 77 P.3d 1111 (2003) (holding that evidentiary
error is harmless for the purposes of Article VII (Amended),
section 3, if "there is little likelihood that the error
affected the verdict"). The Court of Appeals ruled that
"whether improper joinder of charges affected the
verdict depends on whether joinder led to the admission of
evidence that would not have been admissible but for the
joinder * * * and, if so, whether that evidence affected the
verdict on those charges." Poston I, 277
Or.App. at 145.
Or. 110] Thus, in Poston I, the Court of Appeals
ruled that an indictment that charges multiple offenses must
allege the basis for joinder, and, if an indictment fails to
do so and a defendant demurs to the indictment based on that
failure, it is error for the trial court to disallow the
demurrer. The Court of Appeals also ruled that Article VII
(Amended), section 3, applies to the erroneous disallowance
of a demurrer based on the failure to allege the basis for
joinder, and, therefore, the erroneous disallowance of such a
demurrer will not result in reversal if it is harmless, and
whether it is harmless depends on whether evidence admitted
when the charges were tried together would not have been
admitted if the charges had been tried separately and, if so,
whether that evidence affected the verdicts.
case, defendant relied on Poston I to argue that the
trial court erred by disallowing his demurrer to the
indictment, which, as described above, charged him with two
counts of unlawfully obtaining public assistance, one count
of unlawfully obtaining food stamps, one count of
first-degree theft, and three counts of unsworn
falsification, committed over a period of eleven months.
Defendant argued that, like the indictment in Poston
I, the indictment did not allege the basis for joining
the charges and, therefore, the trial court erred by
disallowing his demurrer. Defendant further argued that the
error was not harmless.
Poston I, the Court of Appeals held that the
allegations in the indictment were sufficient to support
joinder of some of the charges. Warren, 287 Or.App.
at 163. Specifically, the Court of Appeals held that
"the facts alleged in the indictment for the charges of
unlawfully [364 Or. 111] obtaining public benefits, and the
charge of unsworn falsification * * * establish that they are
of 'the same or similar character.'"
Id. But the Court of Appeals did not determine
whether the allegations in the indictment were sufficient to
establish that the first-degree theft charge was "of the
same or similar character" as the other charges.
Id. Instead, the Court of Appeals assumed, without
deciding, that the allegations were insufficient in that
regard and, therefore, the trial court had erred in
disallowing defendant's demurrer. Having made that
assumption, the Court of Appeals turned to the question of
whether the assumed error was harmless, explaining that,
under Poston I, that question required it "to
examine the erroneously joined charges as if they had been
tried separately and determine whether '[a]ll of the
evidence that was presented at defendant's trial would
have been admissible.'" Warren, 287 Or.App.
at 164 (quoting Poston I, 277 Or.App. at 146). The
Court of Appeals further explained,
"'Poston demonstrates that evidence
presented at trial on erroneously joined charges would be
"admissible," as we used that term in
Poston, in a hypothetical trial on each charge or
properly joined group of charges, only when (1) each item of
evidence that was actually presented could have been admitted
in the hypothetical trial under a legally correct evidentiary
analysis and (2) it is implausible that, had the defendant
objected under OEC 403 or raised some other objection
invoking the trial court's discretion, the trial court
would have excluded that evidence in the hypothetical
Id. (quoting State v. Clardy, 286 Or.App.
745, 772-73, 401 P.3d 1188 (2017)). Applying that test in
this case, the Court of Appeals held that any error in
joining the first-degree theft charge with the other charges
was harmless because all the evidence that was admitted in
defendant's trial would have been "admissible,"
as that term was used in Poston I, in separate
trials, if the first-degree theft charge had not been joined
with the other charges. Id.
defendant's petition, we allowed review to determine
whether, as the Court of Appeals held in Poston I,
an indictment that charges more than one offense must allege
the basis for joinder of the offenses and, if so, whether the
erroneous disallowance of a demurrer for failure to allege
[364 Or. 112] the basis for joinder is subject to the
harmless error test established in Poston I.
Whether an Indictment Must Allege the Basis for Joinder
begin with the question of whether an indictment that charges
more than one offense must allege the basis for joining the
charges. As framed by the parties, that is a question of
statutory interpretation. Defendant argues that the joinder
statute, ORS 132.560, requires that an indictment allege the
basis for joining charges; the state argues that it does not.
statutes are relevant to whether an indictment must allege
the basis for joining charges: the joinder statute, ORS
132.560, which governs the number of offenses that can be
charged in a single indictment, and the demurrer statute, ORS
135.630, which governs the grounds for demurrers and
cross-references the joinder statute. The statutes are
related and provide context for each other. See PGE v.
Bureau of Labor and Industries, 317 Or. 606, 611, 859
P.2d 1143 (1993) (stating that the context of a statute
includes related statutes); see also State v.
Norton, 9 Or.App. 595, 598, 497 P.2d 680 (1972)
(explaining that the joinder and demurrer statutes "must
be read in conjunction" with each other).
begin with the text of the joinder statute, ORS 132.560.
See PGE, 317 Or at 610 (stating that the text of a
statute is "the starting point for
interpretation"). It provides, in pertinent part, that a
charging instrument must charge only one offense, unless the
charges are related in one of three ways:
"(1) A charging instrument must charge but one
offense, and in one form only, except that:
"(a) Where the offense may be committed by the use of
different means, the charging instrument may allege the means
in the alternative.
"(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:
[364 Or. 113] "(A) Of the same or similar
"(B) Based on the same act or transaction; or
"(C) Based on two or more acts or transactions
connected together or constituting parts of a common scheme
"(2) If two or more charging instruments are found in
circumstances described in subsection (1)(b) of this section,
the court may order them to be consolidated.
"(3) If it appears, upon motion, that the state or
defendant is substantially prejudiced by a joinder of
offenses under subsection (1) or (2) of this section, the
court may order an election or separate trials of counts or
provide whatever other relief justice requires."
terms, the joinder statute relates to "charging
instrument[s]." ORS 132.560(1). It creates a general
rule that a charging instrument must not charge more than one
offense. That general rule is subject to three exceptions: a
charging instrument may charge more than one offense if, and
only if, the offenses are "[o]f the same or similar
character," "[b]ased on the same act or
transaction," or "[b]ased on two or more acts or
transactions connected together or constituting parts of a
common scheme or plan." ORS 132.560 (1)(b)(A) - (C).
demurrer statute, ORS 135.630, authorizes a defendant to
demur to a charging instrument. A demurrer is a challenge to
the charging instrument itself. See State v.
Pinnell, 319 Or. 438, 444, 877 P.2d 635 (1994). It must
be resolved based on the face of the charging instrument.
See id. When ruling on a demurrer, a trial court
cannot consider facts other than those alleged in the
charging instrument. See id. The grounds for a
demurrer are limited and are specified in the demurrer
statute. ORS 135.630 (identifying six bases for demurrers).
As relevant here, the demurrer statute provides:
"The defendant may demur to the accusatory instrument
when it appears upon the face thereof:
[364 Or. 114] "(2) If the accusatory instrument is an
indictment, that it does not substantially conform to the
requirements of ORS 132.510 to 132.560, 135.713,
135.715, 135.717 to 135.737, 135.740 and 135.743[.]"
ORS 135.630 (emphasis added). Thus, the demurrer statute
authorizes a defendant to demur to an indictment for
non-compliance with the requirements of certain statutes,
including the joinder statute.
together, the joinder and demurrer statutes establish a
pleading requirement and a means for enforcing that
requirement. The joinder statute requires that an indictment
charge only one offense, unless an exception applies. The
demurrer statute provides that a defendant can challenge
non-compliance with that requirement through a demurrer.
Because a demurrer must be resolved on the face of the
pleading, the fact that the legislature has provided that a
defendant can demur to an indictment on the ground that it
does not comply with the joinder statute indicates that the
legislature intended that a trial court would be able to
determine, from the face of an indictment, whether the
indictment complies with the joinder statute, because it
either alleges only one offense or alleges more than one
offense and an exception. See Poston I, 277 Or.App.
at 143 (holding that the fact that a defendant may demur to
an indictment on the ground that it does not comply with ORS
132.560 supports the conclusion that "a charging
instrument must show on its face that the
requirements of ORS 132.560 have been met")
(emphasis in original)).
interpretation of the joinder and demurrer statutes is
consistent with their history and the case law interpreting
them, which, as discussed below, shows that, for more than
one hundred years, Oregon law has limited the number of
offenses that can be charged in a single charging instrument
and has required that charging instruments allege facts
sufficient to demonstrate compliance with those limits.
general rule, under Oregon law, a charging instrument may
charge only one offense. ORS 132.560(1). The purpose of the
general rule is simple: it serves to protect defendants from
the prejudice that can result from trying multiple, unrelated
offenses at one time. State v. Cook, 242 [364 Or.
115] Or 509, 521, 411 P.2d 78 (1966) (stating that the
statute that limits joinder of charges is intended to prevent
prejudice at trial caused by commingling of charges); see
State v. Boyd, 271 Or. 558, 569, 533 P.2d 795 (1975)
(noting that a defendant has a right "to face a trier of
fact unprejudiced by damning evidence of extraneous
transactions"). Just as the admission of evidence of
other crimes can be unfairly prejudicial when a defendant is
charged with a single crime, the joinder of charges for
multiple crimes can be unfairly prejudicial. State v.
Brown, 299 Or. 143, 151, 699 P.2d 1122 (1985) (stating
that evidence of other crimes "usually is very
prejudicial to the defendant because such a fact is often
interpreted by the jury as evidence of bad criminal
general rule that a charging instrument may charge only one
offense dates back to before Oregon was a state. Statutes
of Oregon 1854, Act to Define Crimes and Misdemeanors, and
Regulate Criminal Proceedings, p 184. In 1853, the
legislative assembly of the Oregon Territory enacted an act
concerning criminal law. The act included a section governing
the number of offenses that could be charged in an
indictment. Id. at ch XXI, § 7, p 231. That
section provided, "The indictment shall charge but one
offence, and in one form only, except that where the offence
may be committed by the use of different means, the
indictment may allege the means in the alternative."
territorial law-including the limit on the number of offenses
that an indictment could charge-continued in effect after
Oregon became a state. Or Const, Art XVIII, § 7
(providing for the continuation of laws in effect in the
Oregon Territory). The limit on the number of offenses that
[364 Or. 116] an indictment could charge was initially
codified as a state statute in the Deady Code. General Laws
of Oregon, Crim Code, ch VIII, § 74, p 454 (Deady
1845-1864). Under that statute, a charging instrument could
not charge more than one offense under any circumstances. But
it could allege multiple acts if the acts constituted a
order to enforce the limit on the number of offenses charged
in a single indictment, the territorial law provided that a
defendant could demur to an indictment if it charged more
than one offense. Statutes of Oregon 1854, Act to Define
Crimes and Misdemeanors, and Regulate Criminal
Proceedings, ch XXIV, § 3, p 237. That provision
also became state law and was initially codified as a state
statute in the Deady Code. General Laws of Oregon, Crim Code,
ch XI, § 123, p 461-62 (Deady 1845-1864). Under that
statute, defendants demurred to indictments-all of which were
single-count indictments-on the ground that they alleged
multiple acts that did not constitute a single offense.
Courts reviewed those demurrers to determine whether the
allegations in the indictment charged only one offense. It
had to be clear from the face of the indictment that the
indictment charged only one offense; if it was not, the
demurrer had to be allowed. On that point, State v.
Clark, 46 Or. 140, 80 P 101 (1905), is illustrative.
Clark, the defendant was charged with stealing three
horses, one belonging to one person and the other two
belonging to a second person. The defendant demurred to the
indictment on the ground that it improperly charged more than
one offense because the horses belonged to different persons.
The trial court disallowed the demurrer. This court affirmed,
explaining that "the stealing of articles belonging [364
Or. 117] to two or more persons at the same time and place
constitutes but one offense, and may so be charged in an
indictment." 46 Or at 141-42. But, this court emphasized
that the basis for alleging the multiple larcenies had to
appear on the face of the indictment. Id. at 142.
Specifically, this court ruled, "It must be alleged * *
* that the larcenies were committed at the same time and
place. There is no presumption that, because they are charged
to have been committed on the same day and in the same
county, they constitute a single crime." Id.
Thus, in Clark, the disallowance of the
defendant's demurrer was proper only because the
indictment alleged that "the defendants did at the time
and place specified, and as one transaction, commit
the several acts charged." Id. (emphasis
added). See also State v. Laundy, 103 Or. 443, 468,
206 P 290 (1922) (affirming trial court's disallowance of
a demurrer to an indictment that alleged multiple violations
of the criminal syndicalism statute because the indictment
alleged that the violations were committed at the same time
and place and constituted a single transaction).
1933, the legislature amended the statute governing the
number of offenses that could be charged in a single
indictment by providing that charges for "the same act
or transaction" could be joined for indictment and
trial. Or Laws 1933, ch 40, § 1. As amended, the statute
"[W]hen there are several charges against any person, or
persons, for the same act or transaction instead of having
several indictments, the whole may be joined in one
indictment in several counts; and if two or more indictments
are found in such cases, the court may order them to be
OCLA § 26-711 (1940), recodified at ORS 132.560
(1953), amended by Or Laws 1989, ch 842, §
1, amended by Or Laws 1993, ch 278, § 1. Thus,
under the statute, an indictment could charge a defendant
with multiple offenses if, and only ...