State v. WalshState v. Walsh
Convictions on Counts 7, 8, 9, 10, and 11 reversed; remanded for resentencing; otherwise affirmed.
Peter Gartlan, Chief Defender, and Eric Johansen, Deputy Public Defender, Office of Public Defense Services, filed the opening brief for appellant. John Vincent Walsh filed the reply and supplemental briefs pro se.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Susan G. Howe, Assistant Attorney General, filed the answering brief for respondent. On the supplemental brief were Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Susan G. Howe, Assistant Attorney General.
Before DeHoog, Presiding Judge, and Egan, Judge, and Aoyagi, Judge.
DEHOOG, P. J.
Convictions on Counts 7, 8, 9, 10, and 11 reversed; remanded for resentencing; otherwise affirmed.
Defendant appeals a judgment convicting him of first-degree robbery (Count 4),
For context, we begin by reviewing the relevant statutory and decisional law, together with the specific allegations of the indictment, noting that, as we have repeatedly held * * *, a court may consider only the information alleged in the indictment when ruling on a demurrer. State v. Waters, 273 Or App 665, 667, 359 P3d 526 (2015) (quoting State v. Cervantes, 232 Or App 567, 573, 223 P3d 425 (2009)). We review the denial of a demurrer for errors of law. State v. Marks, 286 Or App 775, 780, 400 P3d 951 (2017).
Under
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.
The net effect of
Here, the indictment alleged, in relevant part:
[Count 4, Robbery in the First Degree]
[Defendant], on or about July 26, 2012, in the County of Multnomah, State of Oregon, did unlawfully and knowingly, while in the course of committing and attempting to commit theft, with the intent of preventing and overcoming resistance to defendant‘s taking of property and retention of the property immediately after the taking, and being armed with a deadly weapon, use and threaten the immediate use of physical force upon another person[.]
[Count 5, Burglary in the First Degree]
[Defendant], on or about July 26, 2012, in the County of Multnomah, State of Oregon, did unlawfully and knowingly enter and remain in a dwelling located at [a specific address], Portland, Oregon, with the intent to commit the crime of Theft therein[.]
The state further alleges that the above-described offense was committed in an occupied dwelling.
[Count 6, Robbery in the Second Degree]
[Defendant], on or about July 26, 2012, in the County of Multnomah, State of Oregon, did unlawfully and
knowingly, while in the course of committing and attempting to commit theft, with the intent of preventing and overcoming resistance to defendant‘s taking of property and retention of the property immediately after the taking, and being aided by another person actually present, use and threaten the immediate use of physical force upon another person[.]
[Count 7, Felony Fleeing or Attempting to Elude a Police Officer]
[Defendant], on or about July 26, 2012, in the County of Multnomah, State of Oregon, being an operator of a motor vehicle upon a public highway and premises open to the public, and having been given a visible and audible signal to stop by a police officer who was in uniform and prominently displaying the police officer‘s badge of office and operating a vehicle appropriately marked showing it to be an official police vehicle, did unlawfully and knowingly, while still in the vehicle, flee and attempt to elude a pursuing police officer[.]
[Count 8, Reckless Driving]
[Defendant], on or about July 26, 2012, in the County of Multnomah, State of Oregon, did unlawfully and recklessly drive a vehicle upon a public highway and premises open to the public, in a manner that endangered the safety of persons or property[.]
[Count 9, Unlawful Possession of Heroin]
[Defendant], on or about July 26, 2012, in the County of Multnomah, State of Oregon, did unlawfully and intentionally and knowingly possess HEROIN[.]
The state further alleges that defendant was in possession of five grams or more of a mixture or substance containing a detectable amount of HEROIN[.]
[Count 10, Recklessly Endangering Another Person]
[Defendant], on or about July 26, 2012, in the County of Multnomah, State of Oregon, did unlawfully and recklessly create a substantial risk of serious physical injury to another person[.]
[Count 11, Recklessly Endangering Another Person]
[Defendant], on or about July 26, 2012, in the County of Multnomah, State of Oregon, did unlawfully and recklessly
create a substantial risk of serious physical injury to another person[.]
(Uppercase in original.)
Defendant demurred to the indictment, arguing that it should be dismissed because it failed, on its face, to allege that counts 7-11 are from the same act or transaction or part of a common scheme or plan as counts 4-6. Defendant separately argued that Count 9, which alleged the unlawful possession of heroin, had absolutely nothing to do with the Robbery counts or the driving offenses alleged. The trial court disallowed the demurrer and, following a bench trial, found defendant guilty of Counts 4 through 11.
The indictment does not allege joinder in the language of
Our conclusion that the trial court erred does not complete our inquiry. That is because, [u]nder Article VII (Amended), section 3, of the Oregon Constitution, we must affirm a conviction if there is little likelihood that [an] error affected the verdict. Poston, 277 Or App at 145 (second alteration in original; internal quotation marks omitted). Here, the question whether improper joinder of charges affected the verdict depends on whether joinder 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 on those charges. Id. That analysis requires us to examine the erroneously 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. Id. at 146. As we have explained,
[o]ur analysis in Poston demonstrates that evidence presented at trial on erroneously joined charges would be admissible, as we used that term in Poston, in a hypothetical trial on each charge or properly joined group of charges, 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 (2017). If each item of evidence admitted at defendant‘s trial would have, in a Poston sense, been admissible at a separate trial of any improperly joined offenses, then the erroneous denial of defendant‘s demurrer would be harmless with respect to those offenses.
Furthermore, even if evidence presented at defendant‘s trial would not have been admissible under Poston, the trial court‘s error would nonetheless be harmless if there
Here, the state‘s evidence was that, on the date of the charges, defendant and two other individuals had entered the house of an acquaintance, Weinberger, who at the time used and sold heroin that he kept at home. Upon entering, defendant and the other men encountered a woman, Green. Defendant took items out of the home while a codefendant held Green at gunpoint. When Green tried to call the police, the codefendant responded by punching her in the face. Later, after the men had driven off, Green called 9-1-1. In her call, she described the men who had entered Weinberger‘s home, the car they had driven, and one of the items that defendant had taken. Shortly thereafter, a patrol officer spotted a car matching Green‘s description and activated his overhead lights. Rather than immediately pulling over, the car accelerated and turned off the road into a cul-de-sac before eventually coming to a stop. Defendant was the lone occupant of the car, which contained various items that had been taken from Weinberger‘s home. After arresting defendant, an officer found a baggie of heroin in his pocket.
In addition to that evidence, the court heard evidence in support of Count 12, the first-degree robbery charge on which it acquitted defendant. That charge involved allegations that, earlier in the day of the above burglary, defendant and a codefendant had forcibly stolen Weinberger‘s wallet and cell phone. Weinberger and another witness testified that, in the course of that robbery, defendant had attempted to tase Weinberger and that the codefendant had held a gun to Weinberger‘s head and forced him to empty out his pockets.
The question of harmlessness does not depend on our view of the weight of the evidence. Nonetheless, we often conclude that erroneously admitted evidence is harmless when the evidence of guilt is overwhelming, and when the challenged evidence is merely cumulative of, rather than qualitatively different from, other, properly admitted evidence. State v. Stewart, 270 Or App 333, 340-41, 347 P3d 1060, rev den, 357 Or 743 (2015). Here, if the heroin evidence were to be offered as circumstantial evidence that defendant had been in Weinberger‘s home, it would be merely cumulative of the evidence that an officer found, in defendant‘s car, property that was much more clearly associated with that crime scene. Moreover, the state produced ample direct evidence of defendant‘s involvement, such as Green‘s testimony identifying defendant as one of the men who had robbed her, and a codefendant‘s admission at trial that he and defendant had committed the burglary and robbery together. Accordingly, the court‘s error in denying the demurrer was harmless as to the burglary and robbery charges, Counts
With regard to the remaining charges, however, we conclude that the erroneous denial of defendant‘s demurrer was not harmless. As noted, the driving offenses included allegations of fleeing or attempting to elude, reckless driving, and recklessly endangering another person. In a separate trial on those offenses, evidence that defendant had recently committed several serious crimes would be relevant to show that he had a motive to avoid contact with the police and had therefore knowingly fle[d] or attempt[ed] to elude a pursuing police officer.
Our analysis is much the same for Count 9, the unlawful possession of heroin charge. Even if evidence of defendant‘s other criminal conduct would have been relevant to prove some element of that charge—which is by no means clear—it is certainly plausible that the trial court would have excluded some or all of that evidence under OEC 403, especially the more inflammatory details noted above. See Miller, 287 Or App at 151 (where the defendant was arrested in possession of a gun, evidence that the defendant had recently fired a gun at a group of people would not have been necessary to prove that the defendant knowingly possessed the gun). And, given that the only other evidence that defendant knowingly possessed the heroin was that it was
Convictions on Counts 7, 8, 9, 10, and 11 reversed; remanded for resentencing; otherwise affirmed.