State v. GialloretoState v. Gialloreto
Defendant appeals a judgment of conviction for 11 offenses. Defendant argues that the trial court erred when it denied his demurrer to the indictment, which was premised on the indictment’s failure to allege a sufficient basis for joinder. Specifically, he argues that the indictment’s allegations of public indecency were not of the same or similar character as the indictment’s allegations of rape and related charges, as required by the applicable joinder standard. The state responds that the charges were of the same or similar character because all of the charges in the indictment were sexual offenses. Held: The trial court erred. Applying the standard recently announced by the Court of Appeals in State v. Garrett, 300 Or App 671, 455 P3d 979 (2019), the public-indecency allegations of the indictment were not of the same or similar character as the balance of the charges. Additionally, the error was not harmless.
Reversed and remanded.
Jesse Merrithew argued the cause for appellant. Also on the brief was Levi Merrithew Horst PC.
Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
DEHOOG, P. J.
Reversed and remanded.
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* DeVore, J., vice Hadlock, J. pro tempore.
This appeal presents our first opportunity to apply our recent decision in State v. Garrett, 300 Or App 671, 455 P3d 979 (2019), in which we construed the phrase “same or similar character” in the criminal code’s joinder provision,
The indictment alleged that six of the first seven counts—those alleging rape, robbery, assault, strangulation, and two acts of unlawful use of a weapon—had all been committed against J on or about June 10, 2015.2 The last four counts, on the other hand, alleged neither a victim nor a specific offense date. Rather, those four counts each alleged the offense of public indecency in identical terms, as follows:
“In a separate act and transaction from the crimes alleged in the above counts, the defendant, on or between May 1, 2015 and June 10, 2015, in Washington County, Oregon, did unlawfully and with intent of arousing the sexual desire of defendant or another person, expose his genitals while in view of a public place.”
Before trial, defendant filed a demurrer under
“We review the disallowance of a demurrer for legal error.” State v. Miller, 296 Or App 421, 422, 439 P3d 504 (2019). In his opening brief, defendant argued—based on our decision in State v. Poston, 277 Or App 137, 370 P3d 904 (2016) (Poston I), adh’d to on recons, 285 Or App 750, 399 P3d 488, rev den, 361 Or 886 (2017)—that the trial court had erred in disallowing his demurrer, because the indictment in his case did not comply with the joinder requirements of
An indictment that charges more than one offense must allege one or more of the authorized bases for joinder listed under
Here, it is undisputed that the indictment does not expressly allege a basis for joinder using the language of
In the state’s view, defendant’s public-indecency charges satisfy “the same or similar character” requirement of
In Garrett, the defendant was charged by indictment with one count of first-degree sodomy and one count of first-degree sexual abuse, both alleged to have been committed against the same child, as well as 15 counts of first-degree encouraging child sexual abuse (ECSA). 300 Or App at 675. Before trial, the defendant filed a demurrer,
On appeal, we recognized, as we had previously, that
Following a canvas of approaches adopted in various federal circuits—including the Ninth Circuit’s approach in United States v. Jawara, 474 F.3d 565 (9th Cir. 2007)—as well as a review of Oregon case law addressing
“the analysis undertaken by Oregon’s courts more closely corresponds with the First and Ninth Circuits that conduct a ‘comprehensive review’ of the allegations in the indictment, and which takes into consideration a variety of factors, including the potential for evidentiary overlap and temporal proximity.”
Garrett, 300 Or App at 682. In drawing that conclusion, we rejected what we viewed as “a narrower categorical approach,” such as that taken by the Seventh Circuit in United States v. Coleman, 22 F.3d 126, 133-34 (7th Cir. 1994), “which focuses almost exclusively on the likeness of the ‘class’ or category of the offenses and does not necessarily depend on temporal proximity or evidentiary similarity.” Garrett, 300 Or App at 680, 683 (comparing the Seventh Circuit’s approach to that suggested by the state, which broadly characterized the defendant’s alleged conduct as “sexual crimes against children“). We therefore also found it necessary to “eschew the state’s categorical approach, in which all sexual crimes against children would be of the same or similar character on the basis of that broad classification alone, in favor of a more thorough review that focuses on the particular allegations in the indictment.” Id. at 683.
Ultimately, in Garrett, we established the following analysis under
“[T]o determine whether charges are of ‘the same or similar character’ under
ORS 132.560(1)(b)(A) , we consider 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. The weight given to any one factor will necessarily depend on the particular allegations in the indictment.”
Id. at 684. Upon applying our new analysis to the indictment at issue in that case, we concluded that the defendant’s ECSA charges were not of the same or similar character as his allegations of sodomy and sexual abuse. Id. at 690.
We turn to an application of the principles articulated in Garrett to the indictment challenged in this case. First, as we did in Garrett, we “eschew the state’s categorical approach,” id. at 683 (rejecting broad classification of offenses as “sexual crimes against children“), which here would categorize all of the charges in the indictment as “sexual offenses.” However, taking that characterization as a reference point of sorts, we begin by comparing defendant’s
“Count 1: RAPE IN THE FIRST DEGREE (* * *
ORS 163.375 )* * * * *
“The defendant, on or about June 10, 2015, in Washington County, Oregon, did unlawfully and knowingly engage in sexual intercourse with [J] by means of forcible compulsion.”
As charged in this case, a person commits the crime of rape in the first degree if the person “has sexual intercourse with another person” and “[t]he victim is subjected to forcible compulsion.”
Public indecency, as charged here, is defined as “[a]n act of exposing the genitals * * * with the intent of arousing the sexual desire of the person or another person” “while in, or in view of, a public place.”
Comparing just the material elements of each offense—that is, setting aside for now our consideration of the significance of the alleged date and location of each offense—there is little if any similarity between the elements of defendant’s rape charge and his public-indecency charges. Rape requires a specific form of physical contact—sexual intercourse—with another person—the victim—while public indecency requires neither physical contact of any kind nor the involvement of any other person; it only requires that the person’s act of exposure be in, or in view of, a public place. See Garrett, 300 Or App at 687 (noting similar distinction between sodomy and encouraging child sexual abuse). Additionally, public indecency includes an intent element—the intent to arouse the sexual desire of the person or another person—while rape in the first degree requires proof of knowing rather than intentional behavior and sexual desire is irrelevant; the focus of that crime is violence or a threat of violence, namely, the use of forcible compulsion, and not the sexual desires of either the defendant or the victim. See
We turn to temporal proximity. Here, the indictment alleges that Counts 1 through 7 all occurred on or about June 10, 2015. Furthermore, other contextual clues on the face of the indictment suggest that those offenses all occurred in the same incident. For example, except for the burglary charge noted above, all of those allegations name J as the victim; the underlying crime for the burglary charge, Count 3, is rape, as alleged in Count 1; the robbery and assault charges, Counts 2 and 4, allege the use of a dangerous weapon; Counts 5 and 6 allege possession of a dangerous weapon; and so on. Thus, the indictment provides an ample factual basis—in addition to the fact that the first seven offenses are alleged to have occurred on or about the same date—for a reader to infer that those offenses were temporally connected.
As to the remaining considerations, including such things as “similar evidence or evidentiary overlap, and whether the charges involve the same or similar victims, locations, intent, modus operandi, or acts,” Garrett, 300 Or App at 684, nothing in the allegations of the indictment suggests the presence of any of those factors. We recognize, based on the evidence produced at trial, that the offenses were all alleged to have occurred in more or less the same location—defendant’s apartment building.8 Also, even though there is no apparent evidentiary overlap between the two sets of offenses and, as noted, the offense of public indecency does not require a victim, the record tell us that there was at least one witness in common between the first seven counts of the indictment and the public-indecency counts: J, who reported having seen defendant masturbating from outside his window and who is the complainant as to the home-invasion rape and related charges. The problem with relying on that information in the context of a demurrer is that none of it is apparent from the face of the indictment. Thus, as the Supreme Court has explained, it has no bearing on whether the factual allegations of the indictment sufficiently allege a basis for joinder under
In light of the foregoing, we conclude that the indictment in defendant’s case did not allege sufficient facts to demonstrate compliance with the joinder statute. That is, neither the elements of the relevant offenses nor the allegations of the indictment suggest that defendant’s public-indecency charges are of the “same or similar character” as his rape charge or any other of the first seven counts of the indictment.9 Accordingly, Counts 8 through 11 should not have been joined with Counts 1 through 7, and the trial court therefore erred in disallowing defendant’s demurrer.
We turn to whether the trial court’s error was harmless. Under
That harmlessness analysis requires us to examine the improperly joined charges as though they had been tried separately and to determine whether “[a]ll of the evidence that was presented at defendant’s trial would have been admissible” at each separate trial. Poston I, 277 Or App at 146. In that context, evidence is “admissible” only when
“(1) each item of evidence that was actually presented could have been admitted in the hypothetical trial under a legally correct evidentiary analysis and (2) it is implausible that, had the defendant objected under OEC 403 or raised some other objection invoking the trial court’s discretion, the trial court would have excluded that evidence in the hypothetical trial.”
State v. Clardy, 286 Or App 745, 772-73, 401 P3d 1188, adh’d to as modified on recons, 288 Or App 163, 406 P3d 219, rev den, 364 Or 680 (2019). Further, in addition to considering whether a defendant has been prejudiced by the factfinder’s exposure to evidence that was not “admissible” in the sense of Poston I, we must also consider other potential causes of prejudice. Specifically, as the Supreme Court has explained,
“improper joinder can prejudice a defendant in several ways, including if the defendant would testify regarding some charges but not others, if the defendant’s defenses to the charges could be viewed as inconsistent, if the evidence of one charge might improperly influence the jury’s verdict on other charges, or if the evidence could confuse the jury. Therefore, if the disallowance of a demurrer allows charges to be tried together improperly and the joint trial affects the defense in any of those ways, the disallowance may be prejudicial.”
Warren, 364 Or at 132-33 (describing Poston I’s prejudice analysis as “incomplete“) (citation omitted).
Starting with the prejudice analysis from Poston I, we first consider whether evidence related to defendant’s home-invasion rape charge and other alleged person crimes would have been admissible in a separate trial on Counts 8 through 11, the public-indecency charges. As to those counts, we accept the state’s concession that the trial court’s error was not harmless. It is certainly plausible, given the availability of several percipient witnesses and the distinct character of the public-indecency charges, that a trial court would have excluded as unfairly prejudicial much or all of the graphic evidence regarding defendant’s alleged person crimes. It is a closer question whether, in a separate trial on defendant’s charges of rape, burglary, robbery, assault, strangulation, and unlawful use of a weapon, it is plausible that a trial court would have excluded evidence of defendant’s alleged acts of public indecency under OEC 403 or on some other discretionary basis. In arguing that it is plausible, defendant points out that two witnesses, J’s neighbor and a police officer, testified solely as to the public-indecency charges, and argues that their testimony tended to “paint the defendant as a bad guy or a pervert with a propensity to be sexually inappropriate.” The state responds that it is “obvious” that evidence that J saw defendant masturbating would have been admissible to establish defendant’s sexual interest in her and his motive for assaulting her.10 Whether or not that is true, it misses the mark. Defendant points to potential prejudice resulting from the evidence that other people had witnessed his alleged acts of public indecency, and the state has offered no theory as to how that evidence would have been independently admissible
When we turn to the additional considerations identified by the Supreme Court in Warren, it becomes even more evident that the improper joinder in this case prejudiced defendant. We note that defendant only waived his right to a jury trial after the trial court denied his demurrer and motion to sever. “Defendant’s decision to waive the jury or risk prejudice in the rape case from the admission of the sexual abuse evidence would not have been necessary had defendant been granted separate trials with separate juries. The imposition of that decision on defendant was itself prejudicial.” State v. Bray, 55 Or App 694, 698, 639 P2d 702, rev den, 292 Or 825 (1982). When that circumstance is combined with the prejudicial effect of the testimony that was unrelated to the complainant, we cannot conclude that there was little likelihood that the court’s error affected the outcome. Accordingly, we reverse and remand.
Reversed and remanded.