State v. BrownState v. Brown
Defendant appealed a judgment of conviction for 13 offenses, challenging the consolidation of two indictments under
Reversed and remanded.
Frances J. Gray filed the briefs for appellant. Randall Todd Brown filed supplemental briefs pro se.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, and Kamins, Judge, and Joyce, Judge.
KAMINS, J.
Reversed and remanded.
KAMINS, J.
Defendant appeals a judgment of conviction for 13 offenses, described below, for which he was charged in two separate indictments that were later consolidated for trial. Defendant assigns 21 errors, eight of them in a supplemental brief pro se. Because it is dispositive, we focus on defendant‘s fifth assignment of error, which challenges the joinder of the two charging instruments. We reverse and remand.
I. BACKGROUND
We begin by briefly describing the circumstances of each indictment, as well as the material procedural facts. The first indictment arose out of a traffic accident that occurred on September 1, 2018, in which defendant drove into the opposite lane and collided with an oncoming vehicle, injuring its two occupants (the September incident). Defendant was taken to the hospital, where tests revealed acute methamphetamine intoxication. In the subsequent investigation, police discovered that the car defendant was driving had been stolen. Inside the car, police also found two firearms, stolen personal identification, and a glass pipe with residue that tested positive for methamphetamine. Defendant had previously been convicted of a felony. As a result, defendant was indicted for nine offenses: felon in possession of a firearm,
The second indictment arose out of a separate arrest that occurred on December 21, 2018 (the December incident). A police officer stopped defendant for a traffic violation and discovered that the vehicle defendant was driving had been stolen. During a search incident to arrest, police found in defendant‘s pockets 18 grams of methamphetamine and a knife that opened with centrifugal force. As a result, defendant was indicted for unlawful delivery of methamphetamine,
| The September Incident | The December Incident |
|---|---|
| UUV | UUV |
| Possession of methamphetamine | Possession of methamphetamine |
| Felon in possession of a firearm | Felon in possession of a restricted weapon |
| Identity theft | Delivery of methamphetamine |
| DUII | |
| Reckless driving | |
| Assault in the fourth degree (2 counts) | |
| Criminal mischief in the second degree |
The state filed a motion to consolidate the two cases, which the trial court granted the same day.2 Defendant subsequently filed three motions to sever—two challenging the joinder of offenses within each indictment and one challenging the joinder of the two indictments. In the motion challenging the joinder of the two indictments, defendant asserted that many of the charges were not of the same or similar character and were not sufficiently connected to be part of a common scheme or plan. The trial court denied those motions, and the case proceeded to a consolidated trial. The jury rendered guilty verdicts on all counts.
II. DISCUSSION
Charges also may be joined through the consolidation of two or more charging instruments.
Where multiple charges are properly joined under
Joinder of criminal offenses implicates competing interests, and
“We review a trial court‘s determination that the state met the statutory requirements for joinder of charges for legal error. We also review a trial court‘s determination whether the facts stated in a defendant‘s motion to sever to show the existence of prejudice for legal error.” State v. Keith, 294 Or App 265, 268, 431 P3d 94 (2018), adh‘d to as modified on recons, 299 Or App 355, 450 P3d 1034 (2019) (citation and brackets omitted). “We limit our review to the state of the record at the time of the court‘s ruling on the motion to sever.” State v. Buyes, 280 Or App 564, 565, 382 P3d 562 (2016) (citation omitted).
Here, the state‘s motion to consolidate argued that the two indictments were joinable on the bases of “same or similar character” and “common scheme or plan.”
As noted, the indictments were consolidated under both the “same or similar character” exception and the “common scheme or plan” exception. Beginning with “same or similar character,” our approach has been to conduct a “comprehensive review,” considering “factors such as the temporal proximity of the acts, similarities in the elements of the offenses, whether there will be similar evidence or evidentiary overlap, and whether the charges involve the same or similar victims, locations, intent, modus operandi, or acts.” State v. Garrett, 300 Or App 671, 682, 684, 455 P3d 979 (2019), rev den, 366 Or 827 (2020).
We have previously applied that analysis to conclude that sodomy and sexual abuse of a child were not similar to encouraging child sex abuse because the elements of each crime were different, they were alleged to have been committed several months apart, the victims and modes of operation were different, and there was no evidentiary overlap. Id. at 685-90 (Police discovered child pornography on the defendant‘s thumb drive while investigating him for abusing his niece.). We have likewise determined that public indecency charges were not similar to rape because the elements of each offense were different and the indictment did not allege that they were committed at the same time or place, nor that there was any evidentiary overlap. State v. Gialloreto, 301 Or App 585, 593-95, 457 P3d 1105 (2019), rev den, 366 Or 827 (2020).
Here, we conclude that some of the offenses in the two indictments were of the same or similar character, but others were not. The offenses which appeared in both indictments—UUV and possession of methamphetamine—were of the same or similar character because the elements of each offense are identical and there were no material differences in defendant‘s intent or acts. The UUV offenses are particularly so because the state alleged that the cars were stolen using a similar modus operandi—“easily defeatable ignition systems“—and that there was evidentiary overlap in the form of text messages. We reach the same conclusion with respect to the felon in possession offenses because the only difference between the two offenses was that in the September incident the possessed item was a firearm, while in the December incident it was a “restricted weapon,” that is, a knife that opened with centrifugal force. Compare
As for the factors other than a comparison of the offense‘s elements, the offenses in each incident were alleged to have been committed several months apart. They also were not alleged to have been committed in the same location, other than being in the same county. See Garrett, 300 Or App at 688 (noting that “the similar, but general, location of the alleged acts, Lane County, does not assist us a great deal in our analysis“). Nor was there any alleged evidentiary overlap between the incidents.
In sum, we conclude that UUV, possession of methamphetamine, and felon in possession in the September incident are of the same or similar character as UUV, possession of methamphetamine, and felon in possession in the December incident. However, identity theft, DUII, reckless driving, fourth-degree assault, and second-degree criminal mischief in the September incident are not of the same or similar character as any of the offenses in the December incident, and the delivery of methamphetamine in the December incident is not of the same or similar character as any of the offenses in the September incident.
Turning to the other basis for joinder in this case, offenses are “connected together or constituting parts of a common scheme or plan” when they are “logically related, and there is a large area of overlapping proof between them.” Dewhitt, 276 Or App at 383 (citation and quotation marks omitted). In Smith, the defendant committed criminal mischief and harassment against his girlfriend‘s son, then, about a month later, kidnapped, strangled, and assaulted his girlfriend. 308 Or App at 641-42. We concluded that the offenses were not connected together or constituting parts of a common scheme or plan because there were no interlocking facts suggesting a logical relationship between the two incidents, and any overlapping evidence was slight. Id. at 645-46. Similarly, in Keith, the defendant was jointly tried for several acts of domestic violence as well as possession of methamphetamine that the police found when they arrested him the day after the last domestic violence incident. 294 Or App at 267-68. We concluded that the methamphetamine charge was insufficiently connected to the other offenses because it was not the result of a perpetuation of the other criminal activity, nor was there any overlapping proof. Id. at 270-71.
On the other hand, in State v. Taylor, 364 Or 364, 374, 434 P3d 331 (2019), the Supreme Court concluded that offenses were connected together or constituting parts of a common scheme or plan where the defendant
Here, the state‘s theory of “common scheme or plan,” as we understand it, was that during both incidents, defendant was engaged in the business of buying and selling contraband such as stolen vehicles, drugs, weapons, and personal identification. Assuming, for the sake of discussion, that that theory is precise enough to satisfy the statute, joinder of felon in possession, UUV, identity theft, and possession of methamphetamine in the September incident with the offenses in the December incident—delivery of methamphetamine, possession of methamphetamine, UUV, and felon in possession—would be proper. When viewed as parts of a scheme to trade contraband, those offenses are logically related, and the ones in the December incident could be considered a perpetuation of the same criminal activity as in the September incident. The state also alleged that there was overlapping evidence in the form of text messages.
That, however, still does not account for joining the offenses in the December incident with those in the September incident related to the car crash—DUII, reckless driving, fourth-degree assault, and second-degree criminal mischief. As in Smith and Keith, there are no interlocking facts suggesting a logical relationship between the crash and contraband crimes committed several months later, nor is there any overlapping proof. Unlike in Taylor, the state does not argue that the car crash was part of defendant‘s scheme to trade contraband, rather, the allegations show that he just so happened to be in possession of contraband when he caused the crash. Nor does the state argue that the car crash somehow precipitated the later contraband crimes, or that the later contraband crimes were the result of perpetuation of defendant‘s dangerous driving. All in all, we fail to see how accidentally causing a car crash can be seen as part of a scheme or plan to trade contraband several months later.
In sum, we assume without deciding that UUV, possession of methamphetamine, felon in possession, and identity theft in the September incident are part of a common scheme or plan as UUV, possession of methamphetamine, felon in possession, and delivery of methamphetamine in the December incident, but conclude that the car crash offenses in the September incident—DUII, reckless driving, fourth-degree assault, and second-degree criminal mischief—are not.
The state appears to argue that because some offenses in the September incident were properly joined with the offenses in the December incident, then any other offenses in the September incident (i.e., the car crash offenses) were also properly joined. In essence, the state argues that it can make a “daisy chain” of offenses—if offense A is joinable with offense B, and offense B is joinable with offense C, then all three offenses may be joined, even if joinder of only offenses A and C would not be proper. We disagree.
Such chaining of offenses is not consistent with prior caselaw holding that the state must allege the basis for joinder in the indictment. In State v. Poston, 277 Or App 137, 139, 370 P3d 904 (2016), adh‘d to on recons, 285 Or App 750, 399 P3d 488, rev den, 361 Or 886 (2017), the defendant was charged with six counts of promoting prostitution and 26 counts of identity theft in an indictment that did not allege any bases for joinder. We reasoned that “the state permissibly could charge all of the promoting-prostitution counts in a single indictment and, in turn, all of the identity-theft counts in a single indictment” but “[w]hat it could not do is join the promoting-prostitution counts
At the end of the day, allowing for daisy chains of offenses would open the door to the joinder of an unlimited number of offenses that “may somehow be tangentially related, but, for all practical purposes, are factually alien to each other.” Dewhitt, 276 Or App at 384 (internal quotation marks omitted). Joinder in such circumstances would elevate concerns of judicial efficiency too far above “protect[ing] defendants from the prejudice that can result from trying multiple, unrelated offenses at one time.” Warren, 364 Or at 114-15. As a result, in this case, the car crash offenses in the September incident were misjoined with the offenses in the December incident.
The next question is whether that error was harmless, i.e., whether there is little likelihood that it affected the jury‘s verdict. State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003).4 In making that determination, we consider whether the misjoinder 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. Smith, 308 Or App at 647. That task can be difficult because, “by relying on multitiered assumptions about hypothetical trials, we encounter increasing difficulty in determining the likely effect of evidence and, accordingly, in concluding whether, as a matter of law, there is little likelihood that the evidence would have affected an imagined verdict.” State v. Walsh,
288 Or App 331, 337, 406 P3d 152 (2017), rev den, 364 Or 680 (2019).
Here, we cannot conclude, nor does the state argue, that the error was harmless with respect to either case because some prejudicial evidence would not have been cross-admissible, and in these circumstances, may have affected the outcome. In particular, evidence of the drug charges in the December incident—a substantial quantity of methamphetamine—would not have been admitted in a trial solely about the offenses in the September incident, nor would evidence of the car crash have been admitted in a trial solely about the offenses in the December incident. See Warren, 364 Or at 115 (“[E]vidence 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.” (Citing State v. Brown, 299 Or 143, 151, 699 P2d 1122 (1985).)). Because there is more than a little likelihood that those pieces of evidence affected the jury‘s verdict on the other charges, misjoinder was not harmless.
Defendant also assigns error to the joinder of offenses within each indictment. We conclude that the offenses in each indictment were properly joined as “of the same or similar character” because they were linked by temporal proximity, location, and evidentiary overlap. We further conclude that they were properly joined as “connected together or constituting parts of a common scheme or plan” because the criminal conduct in each incident occurred and was investigated concurrently, so the offenses were linked temporally and spatially and had substantial overlapping proof. Dewhitt, 276 Or App at 385-86.5
Reversed and remanded.
Notes
“(1) A charging instrument must charge but one offense, and in one form only, except that:
“*****
“(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:
“(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.”