State v. Linthwaite, s. 80-281-C

Decision Date26 May 1981
Docket NumberNos. 80-281-C,s. 80-281-C
Citation52 Or.App. 511,628 P.2d 1250
PartiesSTATE of Oregon, Respondent, v. Kenneth Richard LINTHWAITE, Appellant. ; CA 18242, 80-478-C; CA 18243, 80-479-C; CA 18244, 80-480-C; CA 18245, 80-481-C; CA 18246, 80-482-C; CA 18247, 80-56-F and 80-3973-T.
CourtOregon Court of Appeals
Dennis D. James, Grants Pass, argued the cause for appellant. With him on the brief was Swint & James, Grants Pass

Thomas H. Denney, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were James M. Brown, Atty. Gen., John R. McCulloch, Jr., Sol. Gen., and William F. Gary, Deputy Sol. Gen., Salem.



In these eight consolidated cases, defendant appeals his convictions on five charges of Recklessly Endangering (ORS 163.195), four charges of Attempting to Use a Dangerous Weapon (ORS 166.220), four charges of Menacing (ORS 163.190), two charges of Criminal Mischief in the Second Degree (ORS 164.354) and one charge of Reckless Driving (ORS 487.550).

On appeal, defendant contends the trial court erred: (1) in denying his motion to sever seven misdemeanor charges from two felony charges and for separate trials on the felony charges; (2) in overruling his demurrer to an indictment describing the alleged victim only as "full name unknown"; (3) in sentencing him without allowing the merger of all four counts of Attempting to Use a Dangerous Weapon into one conviction and sentence, and in refusing to merge each conviction and sentence for Menacing with the corresponding conviction for Recklessly Endangering the same victim; and (4) in permitting him to be convicted of and sentenced for two offenses with which he was not charged. For the reasons stated hereafter, we find that these cases should be affirmed in part, reversed in part and remanded for resentencing.


On February 26, 1980, while driving in an erratic manner in a public park, defendant nearly collided with another car, resulting in a confrontation between himself and several members of a single family. Defendant produced a knife and began brandishing it at four members of the family and at an unrelated bystander. He kicked and damaged the car with which he had nearly collided and smashed a camera belonging to one member of the family. The entire episode lasted about twenty minutes.


On February 27, 1980, defendant was charged in an eight-count district court information as follows: Count I, Attempted Assault in the First Degree (Anderson), Count II, Attempted Assault in the First Degree (Steele), Count III, Menacing (Vigil), Count IV, Criminal Mischief in the Second Degree (camera), Count V, Attempted Criminal Mischief in the Second Degree (automobile), Count VI, Harassment (Garland), Count VII, Carrying a Concealed Weapon (knife) and Count VIII, Possession of a Controlled Substance (demerol). He also was charged in a separate complaint with Reckless Driving. 1 On February 28, 1980, the grand jury returned a two-count indictment charging defendant with Attempted Assault in the First Degree (Anderson/Steele). This indictment realleged the facts contained in Counts I and II of the district court information. 2

Thereafter, the prosecutor moved to consolidate the two felony charges contained in the indictment with the remaining six misdemeanor charges contained in the district court information and the Reckless Driving charge. 3 Defendant moved to sever the misdemeanors from the felonies. He also requested separate trials on the felony charges. The state's motion to consolidate and defendant's motion to sever and for separate trials resulted in the entry of an order severing the charges of Harassment (Count VI) and Possession of a Controlled Substance (Count VIII) and consolidating the remaining five misdemeanors and two felonies for trial. 4


Defendant moved for reconsideration. On April 4, 1980, before that motion was heard by the court, the grand jury returned five new indictments charging him with two counts of Attempted Assault in the First Degree (Marsing/full name unknown); four counts of Attempting to Use a Dangerous Weapon (Anderson/Steele/Marsing/full name unknown); two counts of Menacing (Marsing/full name unknown) and Criminal Mischief in the Second Degree (automobile). All of the nine new charges were based upon the same episode which had formed the basis of the original district court information and the first indictment. 5

On April 7, 1980, the court heard arguments on defendant's motion for reconsideration. During this hearing, the prosecutor made an oral motion to consolidate the nine new charges contained in the indictments filed April 4, 1980, with the charges previously consolidated by the circuit court. The defendant again objected to consolidation. The court entered the following order:

" * * * (I)t appearing to this Court that there exists confusion regarding what cases involving Kenneth Richard Linthwaite are to be tried on April 23, 1980; and

"IT IS HEREBY ORDERED that the following cases involving Defendant will be tried on that date:

"(A) Counts I and II of Case No. 80-281-C

"(B) Cases number 80-478-C through and including case No. 80-482-C; and all Counts of these cases.

"(C) Counts III, IV and VII of case No. 80-56-F, and Case No. 80-3973-T;

"IT IS FURTHER ORDERED that Counts VI and VIII of case No. 80-56-F are not to be heard on April 23, 1980, and the State may try those charges and all other drug charges arising out of the incident of February 26, 1980, involving Defendant in Riverside Park at a later Next defendant filed a demurrer against a three count indictment charging Attempted Assault in the First Degree, Attempting to Use a Dangerous Weapon and Menacing. 6 The victim in each count was identified only as "full name unknown." The demurrer was overruled. The fourteen consolidated cases 7 were thereupon tried to a jury, which convicted defendant of sixteen offenses. 8

date without Defendant having available the defense of double jeopardy."


Prior to sentencing, defendant filed a "Notice Of Merger" as follows:

"Comes now the Defendant * * * and gives notice to the Court of his intention to raise the issue of merger at the time of sentencing. The issue of merger shall be raised as the convictions for five convictions of recklessly endangering ORS 163.195 and four convictions of menacing ORS 163.190 and the four convictions for attempting to use a dangerous weapon ORS 166.220(1)."

Dismissing every defense theory concerning merger of convictions and sentences and the impropriety of cumulative punishment, the court suspended imposition of sentence and placed defendant on five years concurrent probation on each of the twelve misdemeanor convictions, and sentenced him to a maximum term of five years in the custody of the Corrections Division on each of the four felony convictions, ordering that those felony sentences be served consecutively.


Defendant first assigns as error the trial court's denial of his motion to sever certain misdemeanor charges from other felony charges and for separate trials on the felony charges.

In his motion, the defendant said:

"* * * The Defendant asserts the request for severance of the charges because Defendant may wish to testify in his own behalf as to (one) of the charges and not place himself in the position of having to answer questions concerning the other. * * *"

As a general rule, a defendant charged with two or more offenses has the right to object to the joinder of those offenses in a single indictment or to the consolidation of separate indictments for trial. The Oregon approach is to strictly limit joinder, State v. Fitzgerald, 267 Or. 266, 271, 516 P.2d 1280 (1973), and the choice of the defendant as to joinder or severance should normally be accepted unless clearly improper, State v. Boyd, 271 Or. 558, 569, 533 P.2d 795 (1975). See also, State v. Shields, 280 Or. 471, 571 P.2d 892 (1977). An exception to the general rule is recognized by ORS 132.560(2), which provides:

"When there are several charges against any person or persons for the same act or transaction, instead of having several indictments, the whole may be joined in one indictment in several counts; and if two or more indictments are found in such cases, the court may order them to be consolidated."

In State v. Boyd, supra, the Supreme Court held that the test for determining whether separate charges are properly consolidated for trial as growing out of the same act or transaction is whether the charges are "unitary." 271 Or. at 568, 533 P.2d 795. Whether charges are unitary is determined by reference to their factual interrelation in terms of the test recognized in State v. Fitzgerald, supra, where the Supreme Court said "charges arise out of the same act or transaction if they are so closely linked in time, place and circumstances that a complete account of one charge cannot be related without relating details of the other charge." 267 Or. at 273, 516 P.2d 1280. See also, State v. Parrish, 45 Or.App. 99, 103, 607 P.2d 778 (1980).

The evidence here discloses that all of the charges consolidated for trial were closely linked in time, place and circumstance. The entire episode took no more than twenty minutes. All of the victims and their property were together. The conduct of defendant constituted a single episode. We fail to see how a complete account of one of the charges could be related by witnesses without at the same time relating details of the other charges. By reference to their factual interrelation, we conclude the charges are unitary. The trial judge committed no error by consolidating them for trial. ORS 132.560(2); State v. Boyd, supra; State v. Fitzgerald, supra; State v. Parrish, supra.

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11 cases
  • State v. Nelson
    • United States
    • Oregon Court of Appeals
    • November 30, 2016
    ... ... 438 the defendant. See State v. Linthwaite , 295 Or. 162, 179, 665 P.2d 863 (1983) (applying the "principle of lenity" adopted in State v. Welch , 264 Or. 388, 505 P.2d 910 (1973) ) ... ...
  • State v. Kessler
    • United States
    • Oregon Supreme Court
    • July 24, 1984
    ... ... 380, 382, 671 P.2d 749 (1983). The Court of Appeals continued that it felt compelled by this court's decision in State v. Linthwaite, 295 Or. 162, 665 P.2d 863 (1983), to "merge" the four second degree kidnapping convictions "into one sentence" and to "merge" the two first degree ... ...
  • Allbee v. Cupp
    • United States
    • U.S. Court of Appeals — Ninth Circuit
    • September 20, 1983
    ... ... Each conviction was for violation of state law, an earlier federal trial having ended in a mistrial. Allbee received three consecutive ... See State v. Linthwaite, 52 Or.App. 511, 525-26, 628 P.2d 1250, 1260 (1981) (holding as a general rule that multiple ... ...
  • State v. Anderson
    • United States
    • Oregon Court of Appeals
    • October 4, 2006
    ... ... Linthwaite, 52 Or.App. 511, 525, 628 P.2d 1250 (1981), rev'd, 295 Or. 162, 665 P.2d 863 (1983) ("[L]egislative intent in these cases is, at best, unclear, ... ...
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