Submitted October 10, 2017
County Circuit Court 14CR13524; Thomas McHill, Judge.
G. Lannet, Chief Defender, Criminal Appellate Section, and
Daniel C. Bennett, Deputy Public Defender, Office of Public
Defense Services, filed the brief for appellant.
F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor
General, and Timothy A. Sylwester, Assistant Attorney
General, filed the brief for respondent.
DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi,
Summary: Defendant appeals a judgment of conviction for four
counts of sexual abuse, assigning error to the disallowance
of his demurrer to the indictment. Defendant argues that the
indictment, which charged defendant with 24 separate counts,
failed to allege the basis for joinder of the separate
offenses. Held: The trial court erred in disallowing
defendant's demurrer. Because defendant entered a
conditional plea reserving his right to review of that issue,
the Court of Appeals reversed and remanded without
considering whether the error was harmless.
Or.App. 422] DEHOOG, P. J.
was charged by indictment with 23 counts alleging various
sexual offenses, including charges of rape, unlawful sexual
penetration, incest, sodomy, and sexual abuse involving seven
alleged victims. The indictment also charged defendant with
one count of tampering with a witness, ORS 162.285. Defendant
unsuccessfully demurred to the indictment on the ground that
it failed to properly allege the basis for joinder of the
separate offenses. After the trial court disallowed his
demurrer, defendant entered a conditional plea of no contest
to four counts of first-degree sexual abuse, ORS 163.427. The
court entered a judgment convicting defendant on those counts
and dismissing the remaining counts. Defendant appeals the
judgment, assigning error to the disallowance of his
demurrer. See ORS 135.335(3) (allowing a defendant
to enter a conditional plea reserving the right to
"review of an adverse determination of any specified
pretrial motion"). We reverse and remand.
review the disallowance of a demurrer for legal error.
State v. Page, 290 Or.App. 562, 563, 415 P.3d 1139
(2018). An indictment that charges more than one offense must
allege one or more of the bases for joinder in ORS
132.560(1)(b)(A) to (C): that the charges 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." If the indictment does not
allege the basis for joinder, then the defendant may demur to
the indictment. State v. Warren, 364 Or. 105,
121-22, 430 P.3d 1036 (2018); ORS 135.630(2) (authorizing
demurrer if the indictment "does not substantially
conform to the requirements of*** [ORS] 132.560"). An
indictment "can allege the basis for joinder either
'in the language of the joinder statute [ORS
132.560(1)(b)] or by alleging facts sufficient to establish
compliance with the joinder statute.'" State v.
Taylor, 364 Or. 364, 375, ___P.3d ___(2019) (quoting
Warren, 364 Or at 109). Whether the indictment is
sufficient "must be resolved based on the face of the
charging instrument," and a court "cannot consider
facts other than those alleged in the charging
instrument." Warren, 364 Or at 113 (citing
State v. Pinnell, 319 Or. 438, 444, 877 P.2d 635
Or.App. 423] Here, the trial court erred when it disallowed
defendant's demurrer. As noted, the indictment charged
defendant with 23 counts of sexual offenses and one count of
tampering with a witness, ORS 162.285. The witness-tampering
count alleged, in its entirety:
"The defendant, on or about July 16, 2014, in Linn
County, Oregon, did unlawfully and knowingly induce or
attempt to induce a witness or person the said defendant
believed may be called as a witness in an official proceeding
to offer false testimony, unlawfully withhold testimony or to
be absent from an official proceeding to which the person had
been legally summoned."
that count itself, nor the balance of the indictment, alleged
any basis for joinder in the language of ORS 132.560(1)(b).
The state argues that the witness-tampering count was
nonetheless properly joined under ORS 132.560 (1)(b)(C) as
"connected together or constituting part of a common
scheme or plan" with the other counts. We disagree. If
the state "chooses to allege facts instead of the
language of ORS 132.560(1)(b)(C) in an indictment, the state
must 'use some language specifically connecting the
crimes together, or specifying the crimes' common scheme
or plan.'" State v. Carter, 295 Or.App.
145, 148, 433 P.3d 741 (2018) (quoting State v.
Marks, 286 Or.App. 775, 782, 400 P.3d 951 (2017));
see also State v. Keith, 294 Or.App. 265, 269-71,
431 P.3d 94 (2018) (construing ORS 132.560(1)(b)(C)). The
state did not use such language here; nor did the allegations
of the indictment include any facts suggesting that the
witness-tampering charge was appropriately joined under ORS
132.560(1)(b)(A) or (B), even if it was not properly joined
under ORS 132.560(1)(b)(C). See Taylor, 364 Or at
375 (factual allegations must "allow the defendant to
understand the state's basis for joining the offenses and
allow the court to determine whether that joinder is
the indictment did not allege a basis for joinder of the
witness-tampering count, the indictment did not comply with
ORS 132.560. Warren, 364 Or at 113. Because that is
sufficient to establish that the trial court erred when it
disallowed defendant's demurrer, we need not separately
decide whether the indictment sufficiently alleged the basis
for joining the various sexual offenses with [296 Or.App.
424] one another. We reverse and remand to allow defendant to
consider whether to withdraw his plea of no contest.
See ORS 135.335(3) (providing that a defendant who