State v. Marks, 400 P.3d 951

Background

Defendant and victim (C) lived together; over several months defendant pressured C into escorting/prostitution, controlled finances, monitored communications, and used physical violence and a firearm to intimidate her.
State indicted defendant on 17 counts; defendant filed a demurrer arguing the indictment failed to allege a statutory basis for joinder under ORS 132.560. The trial court denied the demurrer.
Parties stipulated to the police reports and tried four counts to the court (compelling prostitution; felon in possession of a firearm; two counts of unlawful use of a weapon). The court convicted on all four counts after a bench trial on stipulated facts.
On appeal defendant argued the indictment was legally defective for failing to allege joinder grounds or facts showing the offenses were part of a common scheme or plan as required by ORS 132.560.
The state conceded it did not use the joinder statutory language but argued the factual allegations in the indictment showed the offenses were connected or part of a common scheme or plan.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the charging instrument satisfied ORS 132.560 by alleging facts sufficient to support joinder of multiple offenses	Indictment facts show firearms offenses and prostitution offenses were connected or part of a common scheme, so explicit joinder language not required	Indictment failed to allege statutory joinder language or facts specifically connecting prostitution and firearm counts, so joinder was deficient	The indictment did not allege facts sufficient to establish compliance with ORS 132.560; demurrer should have been allowed
Whether omission of joinder basis was harmless error under Article VII (Amended), §3	State: error harmless because evidence admitted would have been admissible in separate trials	Defendant: error not harmless; improper joinder prejudiced proceedings	Majority: error was not harmless because it is unclear the court separately analyzed evidence and some evidence admitted might have been inadmissible in separate trials; convictions reversed and remanded to allow demurrer
Standard for what a charging instrument must allege to meet ORS 132.560	N/A	The statute requires either the joinder language or facts showing offenses "connected together or parts of a common scheme"; those specific connective allegations are required	Court: State must allege either statutory joinder language or factual allegations sufficient to establish a joinder basis under ORS 132.560
Scope of appellate harmless-error review after demurrer denial (concurrence issue)	N/A	Concurrence: Article VII §3 inapplicable because demurrer ruling is pretrial and would have been dispositive; harmless-error analysis unnecessary and improper	Concurrence agrees demurrer should be allowed but disagrees with majority’s harmless-error analysis (separate opinion)

Key Cases Cited

State v. Poston, 277 Or. App. 137 (2016) (charging instrument must allege basis for joinder either by quoting joinder statute or by alleging facts sufficient to establish compliance)
State v. Clardy, 286 Or. App. 745 (2017) (test for admissibility of evidence when charges were improperly joined: evidence must be admissible in hypothetical separate trials and unlikely to be excluded under OEC 403)
State v. Woodall, 259 Or. App. 67 (2013) (standard of review for denial of a demurrer is legal error)
State v. Cervantes, 232 Or. App. 567 (2009) (review principles cited for demurrer rulings)
State v. Davis, 336 Or. 19 (2003) (Article VII §3 harmless-error test: affirm if little likelihood error affected verdict)
State v. Klontz, 257 Or. App. 684 (2013) (harmless-error analysis in bench trials is context-driven; ask whether disputed evidence was material)
State v. Eberhardt, 225 Or. App. 275 (2009) (discusses harmlessness when indictment may be defective; distinguished in concurrence)
Lloyd A. Fry Roofing Co. v. [City of] Portland, 9 Or. App. 189 (1972) (bench findings equated to a jury verdict for appellate-review purposes)