State v. Garrett, 455 P.3d 979

Background

Defendant (Garrett) was indicted on 17 counts: first‑degree sodomy and first‑degree sexual abuse involving a named child victim (K), plus multiple counts of first‑ and second‑degree Encouraging Child Sexual Abuse (ECSA) for duplicating sexually explicit images of children found on his computer.
The ECSA allegations concerned duplicating child‑sexuality images months before the charged contact with K; the indictment used statutory language for each count and did not state a joinder basis under ORS 132.560(1)(b)(A).
Garrett moved to demur, arguing the sodomy/sexual‑abuse counts were not "of the same or similar character" as the ECSA counts and that joinder prejudiced his defenses and decision whether to testify; the trial court denied the demurrer and the case proceeded to a joint trial.
At trial Garrett admitted being naked with K and made statements about sexual attraction and some touching; experts disputed the DNA findings; jury convicted on sodomy, sexual abuse, and multiple ECSA counts; trial court later merged some counts.
On appeal Garrett argued the trial court erred in disallowing his demurrer because the indictment failed to allege a lawful basis for joinder; the Court of Appeals applied a multi‑factor joinder analysis (elements, temporal proximity, victims, evidentiary overlap) and concluded the demurrer should have been allowed.
The court held the error was not harmless: joinder likely affected Garrett’s substantial rights by permitting evidence and strategic disadvantages (including testimonial choices and potential jury prejudice) that would probably have been excluded or handled differently in separate trials.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the indictment sufficiently alleged a lawful basis to join sodomy/sexual‑abuse counts with ECSA counts under ORS 132.560(1)(b)(A) ("same or similar character").	State: All counts are sexual offenses against children and thus "same or similar character," joinder proper; any prejudice manageable by instruction and OEC 404 admissibility rules.	Garrett: Sodomy/sexual‑abuse of a named child differs in character from duplicating images of other children; indictment lacks joinder language/facts and joinder causes unfair prejudice.	Court: Demurrer should have been allowed—indictment failed to allege facts showing the counts were of the same or similar character.
Applicable analytical approach for "same or similar character."	State: Broad categorical approach—focus on class (all are child sexual offenses).	Garrett: Require factual showing on face of indictment (elements, temporal proximity, evidentiary overlap).	Court: Adopt multi‑factor, holistic approach (elements, temporal proximity, victims, modus operandi, evidentiary overlap) consistent with Oregon precedent and persuasive federal authority.
Whether joinder error was harmless.	State: Any error harmless because evidence was admissible or cumulative; juror instructions could mitigate prejudice.	Garrett: Joinder prejudiced defenses, affected his decision to testify, and allowed evidence that likely would be excluded in separate trials.	Court: Error not harmless—joinder affected substantial rights (evidentiary prejudice and strategic/testimonial harm).
Remedy.	State: Uphold convictions.	Garrett: Reverse and allow demurrer (sever or dismiss joined counts).	Court: Reversed and remanded for entry of judgment allowing the demurrer.

Key Cases Cited

State v. Taylor, 364 Or. 364 (2019) (explains multi‑factor joinder analysis and that not all crimes in a broad class are necessarily "same or similar character")
State v. Warren, 364 Or. 105 (2018) (harmless‑error analysis for erroneous demurrer disallowance includes testimonial strategy and jury‑confusion considerations)
State v. Poston, 277 Or. App. 137 (2016) (state must allege joinder basis in indictment or plead facts sufficient to show compliance with joinder statute)
State v. Buyes, 280 Or. App. 564 (2016) (joinder proper where separate counts involved patently similar conduct against similar family victims)
State v. Williams, 357 Or. 1 (2015) (other‑acts evidence may be admissible to prove sexual purpose but is subject to OEC 403 balancing)
State v. Clardy, 286 Or. App. 745 (2017) (articulates admissibility/harmlessness test for evidence presented on erroneously joined counts)
United States v. Jawara, 474 F.3d 565 (9th Cir. 2007) (holistic Rule 8(a) approach: consider elements, temporal proximity, evidentiary overlap, victims, modus operandi)
United States v. Coleman, 22 F.3d 126 (7th Cir. 1994) (categorical approach to Rule 8(a) joinder where offenses share identical elements)