State v. Poston, 120431530

• Decision Date: 30 March 2016
• Docket Number: 120431530,A152933.
• Citation: 370 P.3d 904,277 Or.App. 137
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Latrell Earvin POSTON, Defendant–Appellant.
• Court: Oregon Court of Appeals

277 Or.App. 137

370 P.3d 904

STATE of Oregon, Plaintiff–Respondent,

v.Latrell Earvin POSTON, Defendant–Appellant.

120431530

A152933.

Court of Appeals of Oregon.

Submitted Dec. 18, 2014.

Decided March 30, 2016.

Peter Gartlan, Chief Defender, and Elizabeth Daily, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General, filed the brief for respondent.

Before ARMSTRONG, Presiding Judge, and EGAN, Judge, and SHORR, Judge.

ARMSTRONG, P.J.

Defendant appeals a judgment of conviction for six counts of promoting prostitution, ORS 167.012, and twenty-six counts of identity theft, ORS 165.800. He contends that the indictment was legally defective because it did not expressly allege a basis for joining multiple counts in a single indictment or otherwise allege facts showing that the charges were properly joined and, consequently, that the trial court erred in denying his demurrer to the indictment. Defendant also assigns error to the court's acceptance of nonunanimous guilty verdicts. We reject the latter assignment without discussion and conclude that, while the trial court erred in denying defendant's demurrer, the error requires reversal only of the identity-theft counts and not the promoting-prostitution counts. Consequently, we reverse defendant's convictions for identity theft and otherwise affirm.

Defendant was arrested for a probation violation and incarcerated at the Inverness Jail. Sergeant Luna of the Multnomah County Sheriff's Office monitored defendant's activities throughout defendant's incarceration. Luna had access to all of defendant's telephone calls at the jail and to a database that tracks the date, time, location, caller, and recipient of every telephone call placed by an inmate. The information in the database is obtained through a monitoring system that requires inmates to enter personal identification numbers before placing telephone calls. Luna also had access to defendant's mail and his inmate account. Any person can deposit money into an inmate account, which an inmate can use to buy goods at the jail commissary.

Shortly after beginning surveillance, Luna concluded that defendant was promoting prostitution from the jail. Defendant had written several letters to victims of his criminal conduct that used prostitution-related terms that Luna did not typically see in jail correspondence. Additionally, defendant had placed a large number of telephone calls to the victims. During those calls, defendant had instructed the victims to post advertisements on escort websites, had discussed with them the cities that they should visit to earn money, and had given them advice on avoiding people involved in law enforcement. Defendant communicated in more than half of his calls with the victims that the victims needed to deposit money in his inmate account. Defendant eventually began using the personal identification numbers of other inmates to place calls to the victims.

The state subsequently charged defendant by indictment with 16 counts of promoting prostitution, ORS 167.012,¹ and 26 counts of identity theft, ORS 165.800.² The indictment alleged that the 16 counts of promoting prostitution had occurred on 12 separate days over an eight-month period. It alleged, in turn, that the 26 counts of identity theft had occurred on 13 separate days over a four-month period. The indictment did not identify the basis on which the charges had been joined in a single indictment.

Defendant demurred to the indictment on the ground that the indictment failed to comply with ORS 132.560, which specifies the circumstances in which an indictment may charge more than one offense. The state responded that ORS 132.560(1)(b)(C)authorized it to charge multiple offenses against defendant in a single charging instrument if the offenses were "parts of a common scheme or plan." In the state's view, the offenses were properly joined under that provision because the state intended to present evidence at trial that would show that all of the offenses were part of a plan to have the victims work as prostitutes and to transfer the proceeds of that activity into defendant's inmate account.

Defendant responded that, in determining whether to grant a demurrer, the court could consider only the facts alleged in the indictment. Because the indictment did not allege any facts that would support a finding that the charged crimes were part of a common scheme or plan, the indictment failed to allege facts that would establish that the charges were properly joined, and, consequently, the court should grant the demurrer. The court disagreed with defendant and denied the demurrer.

At trial, the state introduced 13 receipts into evidence, each of which showed that a victim had deposited money into defendant's inmate account. The state also introduced into evidence audio recordings of 26 telephone calls placed by defendant to a victim using the personal identification numbers of other inmates. The state argued to the jury in closing that it should convict defendant of the counts of promoting prostitution based, among other things, on the deposits of money into defendant's inmate account, and should convict him of the counts of identity theft based on defendant's use of the personal identification numbers of other inmates to place the 26 telephone calls. The jury found defendant guilty of six of the 16 counts of promoting prostitution and all of the counts of identity theft.

We begin with a brief discussion of the relevant statutes. ORS 135.630provides that a defendant "may demur to the accusatory instrument when it appears upon the face thereof * * * that it does not substantially conform to the requirements of * * * ORS 132.560." ORS 132.560provides, in turn:

"(1) A charging instrument must charge but one offense, and in one form only, except that:

" * * * * *

"(b) Two or more offenses may be charged in the same charging instrument in a separate count for each offense 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.

"(2) If two or more charging instruments are found in circumstances described in subsection (1)(b) of this section, the court may order them to be consolidated.

"(3) If it appears, upon motion, that the state or defendant is substantially prejudiced by a joinder of offenses under * * * this section, the court may order an election or separate trials of counts or provide whatever other relief justice requires."

Defendant contends that ORS 132.560required the state to allege in the indictment the basis for joinder—either in the language of the joinder statute or by alleging facts sufficient to sustain joinder under the statute. The state responds that the trial court correctly denied defendant's demurrer because the state was not required to allege a basis for joinder in the indictment. It relies for its argument on the text of ORS 132.560, which provides that two or more offenses may be joined in a single charging instrument if the offenses "are alleged " to have been committed by the same person and, as in this case, the offenses "are * * * based on two or more acts * * * constituting parts of a common scheme." (Emphases added.) In the state's view, that phrasing indicates that the legislature intended to require a charging instrument to allege that the charged crimes were committed by the same person or persons but not to require the charging instrument to allege any of the other joinder requirements identified in ORS 132.560.

Thus, as framed by the parties, our inquiry reduces to whether ORS 132.560requires a charging instrument that charges multiple crimes to allege the basis for joinder or facts that would permit the court to determine the basis for joinder. We conclude that the statute imposes that requirement.

At its codification in 1953, ORS 132.560provided:

"The indictment must charge but one crime, and in one form only, except that:

"(1) Where the crime may be committed by the use of different means, the indictment may allege the means in the alternative.

"(2) 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."

That version of the statute did not explicitly require the state to allege the basis for joinder in the indictment. However, the Oregon Supreme Court confirmed in State v. Huennekens, 245 Or. 150, 420 P.2d 384 (1966), that the statute imposed that requirement.

The defendant in Huennekens was charged by indictment with one count of rape and one count of sodomy. The indictment alleged that the sodomy count was "part of the same act and transaction alleged and hereineabove set forth in Count I [charging the defendant with rape]." Id. at 151, 420 P.2d 384. The defendant demurred to the indictment, and the trial court sustained the demurrer on the ground that the charges had been improperly joined.

The Supreme Court reversed. In doing that, the court specifically relied on the principle that, in most cases, a charging instrument is legally sufficient if it alleges a crime in the language of the statute that establishes the crime:

"The indictment, in the instant case, charges in the language of the [joinder] statute, that the sodomy occurred as part of the same act and transaction as the rape. We have repeatedly held that an indictment in the language of a statute is good against a demurrer. State v. Laundy, 1922, 103 Or. 443, 204 P. 958, 206 P. 290. Since it does not appear on the face of the indictment that the two

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