State v. Miller, 401 P.3d 229

Defendant was indicted on six counts stemming from a July 14, 2012 incident in Multnomah County: attempted murder (Count 1), attempted first-degree assault (Count 2), unlawful use of a weapon (Count 3), obliteration/change of firearm ID (Count 4, acquitted), failure to perform duties of a driver after property damage (Count 5), and unlawful possession of a firearm (Count 6).
After a bench trial the court convicted defendant on Counts 1–3, 5, and 6; defendant had demurred to the indictment on joinder grounds before trial and also objected to admission of two recorded police interviews under OEC 803(5).
Two passengers (Brown and Ritmiller) were interviewed by police the night of the incident; video recordings of those interviews were played at trial after both witnesses said they could not fully recall the events.
The trial court admitted the recordings under OEC 803(5) (past recollection recorded) and denied the demurrer; defendant was convicted on the listed counts (Count 4 acquittal noted).
On appeal defendant argued: (1) Counts 5 and 6 were improperly joined with Counts 1–3 in violation of ORS 132.560; and (2) the recorded police interviews were not admissible under OEC 803(5) because the witnesses neither made nor adopted the records when fresh.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Joinder (ORS 132.560): whether Counts 5 and 6 were properly joined with Counts 1–3	State: allegations that offenses occurred same day/same county suffice; evidence was cross-admissible so any error harmless	Defendant: indictment fails to allege same/similar character, same act/transaction, or common scheme for Counts 5 and 6 with Counts 1–3	Court: Counts 1–3 properly joined together; Counts 5 and 6 were not properly joined with Counts 1–3. Error harmless as to Counts 1–3 but not harmless for Counts 5 and 6 — convictions on Counts 5 and 6 reversed.
Admissibility under OEC 803(5): whether recorded police interviews were "made or adopted" by witnesses	State: video/audio verbatim recordings of witnesses are "made" by them even if police initiated recording; reliability unaffected by who pressed record	Defendant: witnesses did not knowingly make records nor adopt them when fresh; recordings lack the indicia of trustworthiness required by OEC 803(5)	Court: "made" requires witness awareness that statements were being recorded; no evidence witnesses knew or adopted recordings when fresh; foundational requirement not met; admission was prejudicial as to Counts 1–3 — convictions on Counts 1–3 reversed and remanded.

State v. Cunningham, 337 Or 528 (discusses two-part review for hearsay-exception rulings)
Ball v. Gladden, 250 Or 485 (presumption about trial court resolving factual disputes consistent with ultimate conclusion)
State v. Poston, 277 Or App 137 (joinder: state must allege basis for joinder in charging instrument)
State v. Meyer, 109 Or App 598 (examples of proper joinder where offenses were similar in character)
State v. Rood, 118 Or App 480 (joinder across sexual-offense counts of similar character)
State v. Gibson, 338 Or 560 (harmless-error standard for constitutional review of joinder errors)
State v. Clardy, 286 Or App 745 (cross-admissibility test for harmlessness when charges improperly joined)
State v. Klontz, 257 Or App 684 (bench-trial harmless-error analysis; whether disputed evidence was material to court’s resolution)
State v. Staley, 165 Or App 395 (distinguishing review/adoption of police notes from adoption of record)