Dеfendant was convicted of various offenses in connection with a series of events that transpired between December 1 and December 12, 2010. All of those offenses were charged in a single indictment. On appeal, defendant asserts that the trial court committed multiple errors with respect to the joinder of those charges for trial. In particular, defendant argues that the court erred in: (1) denying his demurrer based on his contention that the state failed to satisfy the pleading requirements for joining multiple offenses in a single indictment; and (2) denying his motion to sever one set of charges from the other charges. Defendant further argues — and the state concedes — that the trial court plainly erred in failing to enter a judgment of acquittal on the charge of initiating a false report (Count 10). As amplified below, we conclude that the trial court did not err in denying the demurrer; we further conclude that the court did not err in refusing to sevеr the two sets of charges, in that they were properly joined in the first instance and defendant failed to demonstrate substantial prejudice. Finally, we agree with the parties that the trial court plainly erred in failing to acquit defendant on Count 10, and we exercise our discretion under Ailes v. Portland Meadows, Inc.,
We begin by describing the somewhat complicated series of events that precipitated the charges against defendant, as well as the material procedural facts, which are relatively straightforward. On December 1, 2010, a woman, J, came home from work to discover that her Pendleton home had been burglarized. Several items were taken, including a double-barreled 12-gauge shotgun, a Smith & Wesson 9 millimeter handgun, another shotgun, a pistol, and some Xbox games and controllers. J rеported the incident to the police. Later, surveillance video showed J’s daughter’s ex-boyfriend, Dylan Howell, and another man, Chris Moore, carrying the weapons out of the house. Soon after the burglary, defendant came into possession of the 12-gauge shotgun and the 9 millimeter handgun.
Five days later, on December 6, the Pendleton police executed a warranted search of defendant’s house, the basis of which was unrelated to the Decembеr 1 burglary. Officers found and seized marijuana and paraphernalia, including numerous bags of marijuana, a small plastic bag of hashish, bongs, and a scale. Officers also seized a black cell phone and a backpack containing Xbox games and controllers. However, no guns were found during the December 6 search. One child and four adults, including defendant, were present when the warrant was executed.
“Come see the new toys.”
“Like I said, my friends Smith & Wesson want to see you.”
“And what looks like a ranger.”2
“12-gauge.”
Second, the Xbox games and controllers were later identified as among the items taken in the December 1 burglary.
On December 12,2010, several days after the search of defendant’s house, defendant’s associate, Stephen Cullen, learned from Howell and Moore (the perpetrators of the December 1 burglary) that the police were looking for the missing weapons and suspected that defendant had them. Cullen went to defendant’s house and related that information to him. At that time, defendant was in possession of the 12-gauge shotgun and the 9 millimeter handgun, and his associates had the two other firearms from the December 1 burglary in their possession. Defendant, Cullen, and two other associates decided to give all the guns back to Howell and Moore, who would then turn them over to the police.
With Cullen driving, defendant and the two associates went to drop off the four guns. En route, defendant — who had been attempting to clean fingerprints off the handgun and failed to realize that a round was in the chamber — shot himself in the foot. Defendant and the others then decided, rather than returning the guns as planned, they would dispose of them, throwing them into a rural ditch.
Cullen subsequently drove defendant to the hospital, where defendant received treatment for his wound. While defendant was at the hospital, an officer questioned him about how he had been shot. As described more fully below in our consideration of the sufficiеncy of the evidence of initiating a false report, see
Based on those events, defendant was charged in a single indictment with 10 offenses. Seven of the charges pertained directly to the December 1 burglary and its aftermath. Specifically, defendant was charged with four counts (Counts 4-7) of first-degree theft of a firearm, ORS 164.055, corresponding respectively to a .410 shotgun, the 12-gauge shotgun, the 9 mm handgun, and a .44 magnum pistol. Defendant was also charged with one count of hindering prosecution, ORS 162.325 (Count 2), based on his alleged concealment of the guns after the burglary, as well as one count of tampering with physical evidence, ORS 162.295 (Count 8), and one count of initiating a false report, ORS 162.375 (Count 10), based on the events of December 12. Count 8 related to defendant’s involvement in disposing of the weapons, and Count 10 related to his fictitious explanation of his gunshot wound to the officer who came to interview him at the hospital.
The remaining three charges were predicated on the fruits of the December 6 search of defendant’s home, and attendant circumstances. Specifically, defendant was charged with unlawful possession of marijuana, ORS 475.864 (Count 1), first-degree theft of property valued at $1,000 or more (the Xbox equipment), ORS 164.055 (Count 3), and endangering the welfare of a minor, ORS 163.575 (Count 9), based on the concurrent presence of a minor and controlled substances at his residence.
Before trial, defendant raised two distinct procedural challenges. First, he asserted that “improper joinder” was a basis for a demurrer under ORS 135.630, arguing that, because there was no legal basis to join the various charges under ORS 132.560(l)(b)(A) - (C), the indictment should be dismissed. Defendant argued particularly that, under our
The state remonstrated that joinder was proper under the Johnson construct of ORS 132.560(l)(b)(C), because all 10 charges were inextricably linked, both contextually and with respect to the evidence required to prove them. As the prosecutor summarized, in the state’s view,
“the factual connection is that this is like a snowball running downhill gathering up steam. You have the search warrant, it leads to the discovery of drugs, it sets in motion these guns, that the defendant had sent text messages before the search warrant was executed, that he had possession of, and all of a sudden they’re being disbursed and being given back and gotten rid of.”
The trial court denied defendant’s motions. It explained that it was denying the demurrer “because it’s obvious all of these things are factually related. It was not improper to bring them in the same charging document since obviously one led sequentially to the other, and there are links of proof between them.” From the court’s comments during argument on the motions, it is evident that it considered the fact that the Xbox equipment taken during the December 1 burglary wаs discovered during the December 6 search of defendant’s residence to be an important eviden-tiary nexus between the marijuana and the theft charges.
In denying the motion to sever, the trial court— which had repeatedly sought clarification from the parties with respect to their positions as to which charges could and should be separately tried — explained: “I think that if we’re having so much difficulty figuring out which ones can be tried separately from the оthers, that’s an indication that they probably can’t.”
Ultimately, the jury found defendant guilty on six counts. Pursuant to the state’s motion, Counts 3 (first-degree theft relating to the XBox equipment), Count 4 (first-degree theft of the .410 shotgun), and Count 7 (first-degree theft of the .44 magnum pistol) were dismissed for lack of sufficient evidence. The jury acquitted defendant on Count 1 (marijuana possession), but found him guilty on the remaining counts.
On appeal, defendant assigns error to: (1) the trial court’s denial of his demurrer; (2) the trial court’s denial of his motion to sever; and (3) the trial court’s “plain error” in failing to enter a judgment of acquittal sua sponte as to the charge of initiating a false report (Count 10). As explained below, defendant’s appellate arguments pertaining to the denial of the demurrer are unreviewable as unpreserved; we reject defendant’s severance contentions; and we agree that the entry of a conviction on Count 10 was plain error and exercise our discretion under Ailes to remedy that error.
Defendant’s second assignment of error requires us to consider whether the trial court erred in either of two respects in denying the motion to sever. First, defendant asserts that various charges were improperly joined for trial because they failed to meet the statutory requisites for join-der. Second, defendant argues that, in all events, trying the charges together was substantially prejudicial to his defense.
ORS 132.560 frames our consideration. That statute provides, in relevant part:
“(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.
«* ‡‡‡‡
“(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.”
(Emphasis added.)
As we explained in Johnson,
We begin with the trial court’s predicate ruling that the charges were properly joined for trial, which we review for legal error. State v. Thompson,
Defendant challenges the joining of the “marijuana-related” charges with the “firearm-related” charges, but concedes that the hindering prosecution and tampering with evidence charges were properly joined with the firearm charges.
In response, the state maintains that all of the predicate events were part of the same “messy picture.” In particular, the state notes that, although the police did not find the stolen guns in the December 6 search, that search did yield the Xbox equipment that had been taken along with the guns on December 1. The state also highlights the fact that defendant’s phone, seized in the December 6 search, contained text message evidence linking him to the stolen guns. The state further argues that the enhancement facts on the marijuana possession charge, alleging “possession of stolen property” and “possession of a weapon,” also overlapped with the proof of the theft charges.
Thus, as framed by the parties, the inquiry reduces to whether the marijuana-related offenses and the firearm theft offenses were “connected together or constitute [ed] parts of a common scheme or plan” as required for the permissive joinder of charges for trial under ORS 132.560(l)(b)(C). For the reasons that follow, we conclude that they were.
As already noted, see
Having concluded that the trial court did not err in permitting the joinder of the charges in the first instance, we turn to defendant’s contention that the trial court erred in implicitly, but necessarily, determining that he was not substantially prejudiced by the joinder and in denying his motion to sever the charges on that basis under ORS 132.560(3). We review a determination that the facts presented by defendant did not demonstrate the existence of substantial prejudice for errors of law. State v. Luers,
Defendant contends that he was substantially prejudiced by the trial court’s failure to sever the two sets of charges because “there is nothing to suggest that evidence from the two incidents would have been mutually admissible in separate trials,” and because “the seriousness of the firearm charges would likely have hindered a jury’s ability to base its decision on a dispassionate consideration of the evidence.” Those unelaborated arguments are unavailing in the context of this case because they fail to identify a “case-specific” circumstance that impaired defendant’s right to fair trial in such a way that a danger of substantial prejudice could not be mitigated in other ways, as required by Luers,
We turn, finally, to the third assignment of error. Defendant argues, and the state agrees, that it was “error apparent on the record,” ORAP 5.45(1), to convict him of initiating a false report (Count 10). Specifically, there was no evidence that defendant initiated the fictitious report to the officer who went to him at the hospital (telling the officer that his gunshot wound was caused by a drive-by shooting, when in fact he had shot himself with the stolen 9 mm handgun).
We agree with the parties that, on this record, the requisites of plain error review, see State v. Brown,
We further determine, consistently with Reynolds, that these circumstances warrant the exercise of our Ailes discretion. As we observed in Reynolds, the entry оf a criminal conviction without sufficient proof is a grave error and of constitutional magnitude, and defendant “has a strong interest in having a criminal record that accurately reflects the nature and extent of [his] conduct.” Id. at 522. Indeed, here, the state acknowledges that it has no interest in upholding the erroneous conviction. Further, there is no plausible prospect that a timely motion for judgment of acquittal could have altered the state of the evidentiary record — that is, the record in this regard was fully developed — and defendant gained no strategic advantage from failing to act. See State v. Lusk,
Conviction on Count 10 reversed; remanded for resentencing; otherwise аffirmed.
Notes
Howell told the police that he had given the two guns to defendant shortly after the burglary.
The state presented evidence that a “ranger” is a shotgun.
Defendant’s written motion sought to sever Count 10 (initiating a false report) from the nine other charges. However, at the hearing on that motion, defense counsel expanded the scope of that request.
At one point the court sought (and received) confirmation from counsel that “the link with the unlawful possession of marijuana to *** the previous thefts was that some of thе stolen property was found in a backpack on December 6th in the house.” The court also posited that the state could not “convey how you found the property in the backpack, without in some way conveying why you were there, and it’s a necessary part of the story?”
The trial court merged the guilty verdicts on Count 5 and Count 6, entering a single conviction for first-degree theft of a firearm.
Set out below,
Given defendant’s concession that the hindering prosecution and tampering charges were properly joined with the firearm theft charges, the remainder of the charges, which pertained directly to the fruits of the December 6 search and attendant circumstances — Count 1 (unlawful possession of marijuana); Count 3 (first-degree theft of the Xbox equipment); and Count 9 (endangering the welfare of a minor) — necessarily constitute the “marijuana-related” charges.
Defendant also contends that joining Count 10 with the other counts violated his constitutional due process rights. That argument, raised for the first time on appeal, is unreviewable as unpreserved.