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State v. Warren

Supreme Court of Oregon, En Banc

December 6, 2018

STATE OF OREGON, Respondent on Review,
v.
CHRISTOPHER RAMOAN WARREN, Petitioner on Review.

          Argued and Submitted June 13, 2018

          On review from the Court of Appeals. (CC C130904CR) (CA A156423) [*]

          Ernest 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.

         Case 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).

          DUNCAN, J.

         [364 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.

         I. FACTS

         The 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).[1]

         [364 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 132.560(1)(b)."

         The 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 joinder."

         The 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.")

         Defendant 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.

         At 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 estranged wife.

         The 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).

         Defendant 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.

         In 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.[2]

         [364 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.

         In this 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.

         Applying 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 trial.'"

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.

         On 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.

         II. ANALYSIS

         A. Whether an Indictment Must Allege the Basis for Joinder of Charges

         We 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.

         Two 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).

         We 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 character;
"(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 or plan.
"(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."

(Emphases added.)

         By its 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).

         The 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.

         Read 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)).

         That 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.

         As a 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 character").

         The 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." Id.

         The 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).[3] 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 single offense.

         In 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).[4] 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.

         In 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).

         In 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 provided:

"[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 consolidated."

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, ยง 1. Thus, under the statute, an indictment could charge a defendant with multiple offenses if, and only ...


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