State v. Dewhitt
| Citation | 368 P.3d 27,276 Or.App. 373 |
| Decision Date | 03 February 2016 |
| Docket Number | A151082 (Control), A151083.,C110276CR, D110410M |
| Parties | STATE of Oregon, Plaintiff–Respondent, v. Tyler Dean DEWHITT, Defendant–Appellant. |
| Court | Court of Appeals of Oregon |
276 Or.App. 373
368 P.3d 27
STATE of Oregon, Plaintiff–Respondent,
v.
Tyler Dean DEWHITT, Defendant–Appellant.
C110276CR, D110410M
A151082 (Control), A151083.
Court of Appeals of Oregon.
Submitted April 30, 2014.
Decided Feb. 3, 2016.
Peter Gartlan, Chief Defender, and Laura A. Frikert, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Tiffany Keast, Assistant Attorney General, filed the brief for respondent.
Before DUNCAN, Presiding Judge, and FLYNN, Judge, and HASELTON, Senior Judge.*
HASELTON, S.J.
Defendant appeals judgments of conviction for harassment and unlawful possession of marijuana. Those offenses were charged in separate charging instruments that were joined for trial under ORS 132.560. In his first assignment of error, defendant argues that the trial court erred both in joining the charging instruments and also in denying his motion to sever them. In his second assignment, defendant argues that the trial court erred in granting the state's motion in limine barring him from asserting a "choice-of-evils" defense with respect to marijuana possession. As amplified below, we conclude that the trial court did not err with respect to any of those challenges. Accordingly, we affirm defendant's convictions.
We begin by describing the circumstances leading up to defendant's arrest and the procedural facts relevant to this appeal.1 On February 6, 2011, defendant, his 17–year–old sister, and W, who was dating defendant, left W's mother's home in a car that W's mother owned and allowed her to use. Defendant was driving, W was in the front passenger seat, and defendant's sister was seated in the back. A backpack containing marijuana and smoking paraphernalia, which W and defendant later acknowledged belonged to defendant, was in the back seat.
Defendant and W got into a "heated" argument, and defendant punched the dashboard. Defendant's sister then repeatedly punched W in the back of her head. In an attempt to exit the vehicle, W pulled the emergency brake, but defendant pulled the brake lever back down and continued driving. The altercation continued, and, as a result, coffee spilled all over W and her tooth was chipped, apparently from being hit, punched, or possibly accidentally bumped by defendant. After those events, W made defendant pull over. W got out of the car, walked to a nearby convenience store, and called her mother. Defendant and his sister drove away.
When W's mother got to the convenience store, she found W upset and covered in coffee, with a bloody face and a broken tooth. W's mother promptly called 9–1–1, reporting, "My daughter's boyfriend took off with their car, hit her in the face, broke her tooth." The police arrived shortly thereafter. According to the trial testimony of her mother and the officers who interviewed her at the scene, W told them that defendant had punched her.
After letting W out at the convenience store, defendant and his sister had circled back to W's mother's home. An officer drove there and interviewed defendant, who denied having any physical contact with W during the altercation.
The officer searched the car and discovered evidence of a struggle (blood and spit "kind of all over the place"). He also noticed, in plain view, an "open backpack on the floorboard of the passenger's side," which contained a glass Mason jar full of marijuana, and a pouch with a digital scale and "measuring spoons" inside. After seizing the evidence, the police determined that the jar contained 44.7 grams, or about 1.6 ounces, of marijuana. Defendant admitted that the marijuana was his.
Based on those events, defendant was charged with four crimes in two separate charging instruments. The indictment in Washington County Case No. C110276CR charged one count of unlawful delivery of marijuana, ORS 475.860, and one count of unlawful possession of marijuana, ORS 475.864, alleging:
"The defendant, on or about February 6, 2011, in Washington County, Oregon, did unlawfully and knowingly deliver a controlled substance, to-wit: marijuana, for consideration.
" * * * * *
"The defendant, on or about February 6, 2011, in Washington County, Oregon, did unlawfully and knowingly possess the controlled substance marijuana, in an amount greater than one avoirdupois ounce contrary to the statutes and against the peace and dignity of the State of Oregon."
In Washington County Case No. D110410M, defendant was charged with one count of fourth-degree assault, ORS 163.160, and one count of harassment, ORS 166.065. That charging instrument alleged:
"The defendant, on or about February 6, 2011, in Washington County, Oregon, did unlawfully and recklessly cause physical injury to [W]. The State further alleges that the above described crime constitutes domestic violence.
"The defendant, on or about February 6, 2011, in Washington County, Oregon, did unlawfully and intentionally harass and annoy [W], by subjecting [W] to offensive physical contact contrary to the statutes and against the peace and dignity of the State of Oregon."
At a pretrial conference, the state moved to consolidate, or join, those two charging instruments for trial on the ground that both "ar[o]se out of the same act and transaction" and because, "under OEC 404(3), evidence in C110276CR is relevant to D110410M." See ORS 132.560(1)(b)(B).2 The trial court granted the motion pro forma. Later, at a pretrial hearing, the defense orally challenged the consolidation and moved to sever under ORS 132.560(3), arguing both that the cases did not meet the statutory requisites for joinder and that, in any event, trying
them together would be substantially prejudicial.
The trial court ruled out various potential grounds for joinder, including the rationale supplied by the original order granting joinder, expressly concluding that ORS 132.560(1)(b)(B) was inapposite. The court further determined that joinder was nevertheless appropriate under ORS 132.560(1)(b)(C), which permits the joinder of charges for trial based on "two or more acts or transactions connected together or constituting parts of a common scheme or plan." The court reasoned:
"I think that [subparagraph] C has more than one meaning. [Subparagraph] C is ‘[b]ased on two or more acts or transactions connected together or constituting parts of a common scheme or plan.’ I'd be willing to state that just
based on the face of it that it doesn't necessarily rise to a common scheme or plan.
"But are they connected together? And I think the answer is yes, they're connected together by the time and by the witnesses, investigation, and that that's sufficient for them to remain consolidated. It's true, it's absolutely true that it creates those kind of logistical decisions that a defense has to make. But that doesn't bar it from being tried together."
Thus, the trial court's conclusion that joinder was appropriate rested solely on the "connected together" genre of joinder.
With respect to the separate, but related, issue of severance, the trial court denied defendant's motion to sever, determining that defendant would not be substantially prejudiced by the joinder of the two sets of charges. The trial court acknowledged that there was some risk of prejudice, but stated that it did not rise to the level of substantial prejudice. It reasoned that defendant would "still [be] in a position to be able to testify, if he wants to, and limit the kinds of things he testifies to and thus is cross-examined on, to whatever he [previously] testifies about." In particular, the trial court noted that, if defendant chose to testify about medical marijuana-related matters in connection with the marijuana possession and delivery charges, that testimony would not open the door for the prosecution to question him concerning the fourth-degree assault and harassment charges.
In addition, at a pretrial hearing, the defense announced that it intended to assert a choice-of-evils defense to the charges involving marijuana, see former ORS 475.319(3) (2013), renumbered as ORS 475B.480(3) (2015), and ORS 161.200, and the state moved to bar defendant from doing so.3 As described more fully below, 276 Or.App. at 388–89, 368 P.3d at 35–36, the trial court held a hearing relating to the putative presentation of such a defense. Ultimately, the court granted the state's motion and barred defendant from
asserting the choice-of-evils defense. However, the trial court indicated that it would allow defendant to present limited evidence of his alleged medical marijuana use to the extent that it was relevant to the defense theory that he possessed the marijuana solely for personal use and was not a drug dealer.
At trial, W testified, recounting the...
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State v. Fox
...Court of Appeals construed Oregon's joinder statute as allowing the joinder of charges that are "connected together." 276 Or.App. 373, 368 P.3d 27, 30 (Ct. App. 2016). The appellate court held that charges may be joined on a connected together theory where they are linked by substantial ove......
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...statute is to "reduce the occurrence of multiple trials for multiple related crimes committed by a single defendant." State v. Dewhitt , 276 Or. App. 373, 382, 368 P.3d 27, rev. den. , 359 Or. 667, 379 P.3d 526 (2016). "If a defendant challenges the legality of joinder (that is, raises the ......
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State v. Fox
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