State v. Brown

• Decision Date: 17 May 2023
• Docket Number: A171078,A171079
• Parties: STATE OF OREGON, Plaintiff-Respondent, v. RANDALL TODD BROWN, Defendant-Appellant.
• Court: Oregon Court of Appeals

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326 Or.App. 46

STATE OF OREGON, Plaintiff-Respondent,
v.
RANDALL TODD BROWN, Defendant-Appellant.

A171078, A171079

Court of Appeals of Oregon

May 17, 2023

Submitted March 30, 2022

Washington County Circuit Court 18CR75115, 18CR85116; Theodore E. Sims, Judge.

Frances J. Gray fled the briefs for appellant. Randall Todd Brown fled supplemental briefs pro se.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, fled the brief for respondent.

Before Aoyagi, Presiding Judge, and Kamins, Judge, and Joyce, Judge.

Reversed and remanded.

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[326 Or.App. 47] KAMINS, J.

Defendant appeals a judgment of conviction for 13 offenses, described below, for which he was charged in two separate indictments that were later consolidated for trial. Defendant assigns 21 errors, eight of them in a supplemental brief pro se. Because it is dispositive, we focus on defendant's fifth assignment of error, which challenges the joinder of the two charging instruments. We reverse and remand.

I. BACKGROUND

We begin by briefly describing the circumstances of each indictment, as well as the material procedural facts. The first indictment arose out of a traffic accident that occurred on September 1, 2018, in which defendant drove into the opposite lane and collided with an oncoming vehicle, injuring its two occupants (the September incident). Defendant was taken to the hospital, where tests revealed acute methamphetamine intoxication. In the subsequent investigation, police discovered that the car defendant was driving had been stolen. Inside the car, police also found two firearms, stolen personal identification, and a glass pipe with residue that tested positive for methamphetamine. Defendant had previously been convicted of a felony. As a result, defendant was indicted for nine offenses: felon in possession of a firearm, ORS 166.270(1) (Count 1); unauthorized use of a vehicle (UUV), ORS 164.135 (Count 2); identity theft, ORS 165.800 (Count 3); driving under the influence of intoxicants (DUII), ORS 813.010 (Count 4); unlawful possession of methamphetamine, ORS 475.894 (Count 5); reckless driving, ORS 811.140 (Count 6); two counts of assault in the fourth degree, ORS 163.160 (Counts 7 and 8); and criminal mischief in the second degree, ORS 164.354 (Count 9).^[1]

The second indictment arose out of a separate arrest that occurred on December 21, 2018 (the December incident). A police officer stopped defendant for a traffic violation and discovered that the vehicle defendant was driving had been stolen. During a search incident to arrest, police

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[326 Or.App. 48] found in defendant's pockets 18 grams of methamphetamine and a knife that opened with centrifugal force. As a result, defendant was indicted for unlawful delivery of methamphetamine, ORS 475.890 (Count 1); unlawful possession of methamphetamine, ORS 475.894 (Count 2); UUV, ORS 164.135 (Count 3); and felon in possession of a restricted weapon, ORS 166.270(2) (Count 4). In sum, the two indictments charged the following offenses:

The September Incident	The December Incident
UUV	UUV
Possession of methamphetamine	Possession of methamphetamine
Felon in possession of a firearm	Felon in possession of a restricted weapon
Identity theft	Delivery of methamphetamine
DUII
Reckless driving
Assault in the fourth degree (2 counts)
Criminal mischief in the second degree

The state filed a motion to consolidate the two cases, which the trial court granted the same day.^[2] Defendant subsequently filed three motions to sever-two challenging the joinder of offenses within each indictment and one challenging the joinder of the two indictments. In the motion challenging the joinder of the two indictments, defendant asserted that many of the charges were not of the same or similar character and were not sufficiently connected to be part of a common scheme or plan. The trial court denied those motions, and the case proceeded to a consolidated trial. The jury rendered guilty verdicts on all counts.

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[326 Or.App. 49] II. DISCUSSION

ORS 132.560 governs the joinder and severance of criminal offenses. ORS 132.560(1) "creates a general rule that a charging instrument must not charge more than one offense." State v. Warren, 364 Or. 105, 113, 430 P.3d 1036 (2018). However, ORS 132.560(1)(b)(A) to (C) identifies three circumstances in which multiple offenses may be charged in a single indictment or other charging instrument, as discussed further below. "[I]f an indictment charges more than one offense, it must allege the basis for joining the charges." Warren, 364 Or at 122. The defendant may challenge the joinder of charges by demurrer, in which case the state must establish that the charging instrument on its face complies with the pleading requirements for joinder. See ORS 135.630(2); Warren, 364 Or at 122 ("The issue at the demurrer stage is whether the allegations in the indictment are sufficient to support joinder, and the demurrer must be decided based solely on the face of the indictment."). Or, the defendant may challenge the joinder of charges by moving to sever, arguing that the joinder requirements are not met, ORS 132.560(1), or that the defendant is substantially prejudiced by joinder, ORS 132.560(3).

Charges also may be joined through the consolidation of two or more charging instruments. ORS 132.560(2). If the state moves to consolidate two or more charging instruments, the trial court must "determine whether the charges meet any of the independently sufficient bases for joinder listed in ORS 132.560(1)(b)(A) to (C)." State v. Dewhitt, 276 Or.App. 373, 380, 368 P.3d 27, rev den, 369 Or. 667 (2016). The defendant may oppose consolidation, if given the opportunity, or may move to sever once the charging instruments are consolidated. As with joinder in a single charging instrument, the defendant may argue that joinder by consolidation of charging instruments is improper because the joinder requirements are not met, ORS 132.560(1), or that the defendant is substantially prejudiced by the joinder, ORS 132.560(3).

Where multiple charges are properly joined under ORS 132.560(1), "a defendant seeking severance under ORS 132.560(3) must identify a case-specific theory of substantial

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[326 Or.App. 50] prejudice that is more than the prejudice that is inherent whenever joined charges allow the jury to hear that the defendant may have committed other bad acts." State v. Delaney, 370 Or. 554, 556, 522 P.3d 855 (2022). Such theories "include but are not limited to: (1) that the jury will confuse or cumulate the evidence; (2) that the defendant may be confounded in presenting conflicting defenses; and (3) that the jury will conclude that the defendant is guilty of one crime and therefore guilty of others." Id. at 575. If it appears that the defendant is substantially prejudiced by the joinder, the court may order separate trials of counts or "provide whatever other relief justice requires." ORS 132.560(3).

Joinder of criminal offenses implicates competing interests, and ORS 132.560 reflects a balancing of those interests. On one hand, an accused's right to a fair trial means the exclusion of unfairly prejudicial evidence of other crimes. See Warren, 364 Or at 114-15 ("Just as the admission of evidence of other crimes can be unfairly prejudicial when a defendant is charged with a single crime, the joinder of charges for multiple crimes can be unfairly prejudicial."). On the other hand, "[t]he purpose of the joinder statute is to reduce the occurrence of multiple trials for multiple related crimes committed by a single defendant." State v. Smith, 308 Or.App. 639, 644, 481 P.3d 363 (2021) (internal quotation marks omitted). Thus, judicial efficiency counsels in favor of more permissive joinder. See Dewhitt, 276 Or.App. at 382 (noting that the legislature expanded the bases for joinder in 1989 "to promote the goals of trial economy and judicial efficiency"). ORS 132.560 balances those interests by allowing for joinder where the charges are related in one or more of the ways outlined in subsection (1)(b)(A) to (C).

"We review a trial court's determination that the state met the statutory requirements for joinder of charges for legal error. We also review a trial court's determination whether the facts stated in a defendant's motion to sever to show the existence of prejudice for legal error." State v. Keith, 294 Or.App. 265, 268, 431 P.3d 94 (2018), adh'd to as modified on recons, 299 Or.App. 355 (2019) (citation and brackets omitted). "We limit our review to the state of the record at the time of the court's ruling on the motion to sever." State v. Buyes,

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[326 Or.App. 51] 280 Or.App. 564, 565, 382 P.3d 562 (2016) (citation omitted).

Here, the state's motion to consolidate argued that the two indictments were joinable on the bases of "same or similar character" and "common scheme or plan." ORS 132.560(1)(b).^[3] The state relied on the fact that defendant committed some of the same or similar crimes in each incident-UUV, felon in possession, and possession of methamphetamine. In an attached affidavit, the state added to the allegations in the indictment that in both cases, defendant was driving "an older model from a Japanese manufacturer (Honda Accord and Subaru Impreza) with easily defeatable ignition systems" and that investigators discovered text messages on defendant's phone, which the state intended to offer as evidence that defendant knew both vehicles were stolen and knowingly possessed a firearm in the September incident. The state reprises those arguments on appeal. Defendant, on the other hand, points out that there were also offenses in each indictment that did not appear in the other indictment-the...