State v. Strouse

• Citation: 366 P.3d 1185,276 Or.App. 392
• Decision Date: 03 February 2016
• Docket Number: CF110213,A151756.
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Rhyan Ariel STROUSE, Defendant–Appellant.
• Court: Court of Appeals of Oregon

276 Or.App. 392

366 P.3d 1185

STATE of Oregon, Plaintiff–Respondent,

v.Rhyan Ariel STROUSE, Defendant–Appellant.

CF110213

A151756.

Court of Appeals of Oregon.

Submitted April 30, 2014.

Decided Feb. 3, 2016.

Peter Gartlan, Chief Defender, and Lindsey K. Detweiler, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Matthew J. Preusch, Assistant Attorney General, filed the brief for respondent.

Before DUNCAN, Presiding Judge, and FLYNN, Judge, and HASELTON, Senior Judge.^*

HASELTON, S.J.

Defendant 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 sever 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., 312 Or. 376, 382, 823 P.2d 956 (1991), to correct that error. Accordingly, we reverse defendant's conviction on Count 10, but otherwise affirm defendant's convictions, and remand for resentencing, ORS 138.222(5).

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 reported 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.¹

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 December 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.

Two details pertaining to the seized cell phone and the items in the backpack are material to our consideration of defendant's anti-joinder and severance challenges. First, the police discovered a number of text messages possibly referencing criminal activity on the cell phone. In particular, a series of messages that defendant had sent on December 3 conveyed that he had recently come into possession of a 12–gauge shotgun and a 9 millimeter handgun:

"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 sufficiency of the evidence of initiating a false report, see 276 Or.App. at 404, 366 P.3d at 1192–93, defendant answered that he had been the victim of a drive-by shooting at his residence.

Based on those events, defendant was charged in a single indictment with ten 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(1)(b)(A)–(C), the indictment should be dismissed. Defendant argued particularly that, under our decision in State v. Johnson, 199 Or.App. 305, 314–18, 111 P.3d 784, rev. den., 339 Or. 701, 127 P.3d 1203 (2005), various charges were neither "connected together" nor "constitute[ed] parts of a common plan or scheme," so as to be amenable to permissive joinder under ORS 132.560(1)(b)(C). See Johnson, 199 Or.App. at 317, 111 P.3d 784 (holding that ORS 132.560(1)(b)(C) is satisfied where "the joined counts are logically related, and there is a large area of overlapping proof" between them). Second, defendant concurrently filed a motion to sever, seeking to separate the theft and hindering charges from the marijuana charges for the same reason.³

The state remonstrated that joinder was proper under the Johnson construct of ORS 132.560(1)(b)(C), because all ten 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 was discovered during the December 6 search of defendant's residence to be an important evidentiary nexus between the marijuana and the theft charges.⁴

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 others, 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), 4 (first-degree theft of the .410 shotgun), and 7 (first-degree theft of the .44 magnum pistol) were dismissed for lack of sufficient...