State v. Smith, 012121 ORCA, A166335

Docket Nº:A166335, A166336, A166337
Opinion Judge:AOYAGI, J.
Party Name:STATE OF OREGON, Plaintiff-Respondent, v. MICHAEL BENJAMIN SMITH, aka Michael Benjamen Smith, Defendant-Appellant.
Attorney:Meredith Allen, Deputy Public Defender, argued the cause for appellant. Also on the reply and supplemental brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. On the opening brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Sect...
Judge Panel:Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge
Case Date:January 21, 2021
Court:Court of Appeals of Oregon

308 Or.App. 639

STATE OF OREGON, Plaintiff-Respondent,

v.

MICHAEL BENJAMIN SMITH, aka Michael Benjamen Smith, Defendant-Appellant.

A166335, A166336, A166337

Court of Appeals of Oregon

January 21, 2021

Argued and submitted May 30, 2019.

Marion County Circuit Court 16CR68675, 16CR75862, 17CR12608; Courtland Geyer, Judge.

Meredith Allen, Deputy Public Defender, argued the cause for appellant. Also on the reply and supplemental brief was Ernest G. Lannet, Chief Defender, Criminal Appellate Section, Office of Public Defense Services. On the opening brief were Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Erica Herb, Deputy Public Defender, Office of Public Defense Services. Michael Benjamin Smith filed the supplemental brief pro se.

Philip Thoennes, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeHoog, Presiding Judge, and Egan, Chief Judge, and Aoyagi, Judge [*]

[308 Or.App. 640] AOYAGI, J.

Defendant was charged with multiple offenses in three separate cases arising from three separate incidents. Under ORS 132.560, the trial court consolidated the charging instruments, joined the charges for trial, and declined to sever them, reasoning that the offenses were connected together or constituted parts of a common scheme or plan. After a jury trial, defendant was convicted of 10 offenses, including five offenses on which the jury returned nonunanimous verdicts. Defendant appeals the resulting judgment. We reverse eight convictions, affirm two convictions, and remand.

FACTS

In Case No. 16CR68675 ("Case 675"), defendant was charged with criminal mischief, unauthorized entry into a motor vehicle, and harassment, based on an incident on October 20, 2016. According to the state, defendant was at his girlfriend M's house when M's teenaged son E came to pick up something. E's older brother Dyer waited in the car while E went inside. Defendant, who was under the influence of methamphetamine, walked outside wearing an untied robe and carrying an umbrella. Dyer did not want to engage with defendant and stayed in the car. Defendant hit Dyer's car with the umbrella several times, damaging the car, and he jabbed Dyer in the shoulder with the umbrella through the car window. Dyer got out of the car and chased defendant into the house. M was asleep during the incident and awoke only when defendant came running through the house. Defendant escaped through M's window. The police were called, and they found defendant crawling through bushes at a nearby school.

In Case No. 16CR75862 ("Case 862"), defendant was charged with two counts of kidnapping, two counts of coercion, one count of strangulation, and one count of fourth-degree assault, based on an incident on November 25, 2016.1According to the state, M slept at defendant's house that night. In the wee hours, defendant, who had been smoking methamphetamine, became upset when he found a photo of [308 Or.App. 641] a naked man on M's phone. M tried to leave, but defendant closed the garage door and pushed her against a wall. For three hours, he physically prevented M from leaving the garage, and he assaulted and choked her. M finally escaped.

In Case No. 17CR12608 ("Case 608"), defendant was charged with felony eluding (in a vehicle), misdemeanor eluding (on foot), and unlawful possession of methamphetamine, based on an incident on February 25, 2017. According to the state, a sheriffs deputy, Evarts, had been trying to locate defendant for weeks because an arrest warrant had been issued in Case 862. Evarts finally located him on February 25. Upon seeing Evarts, defendant fled in his vehicle, stopped, and then fled on foot. Defendant was caught and arrested. Everts found a methamphetamine pipe on defendant's person during a search incident to arrest.

On the state's motion, the trial court consolidated the charging instruments in Cases 675 and 862 under ORS 132.560(1)(b)(C), based on the charged offenses being connected together or constituting parts of a common scheme or plan. Defendant later moved to sever, arguing that the joinder substantially prejudiced him. The court denied the severance motion and, at that time, consolidated all three cases on "common scheme or plan" grounds. Thus, the charges in Cases 675, 862, and 608 were joined for trial.

Defendant was tried to a jury. Consistent with the law at the time, the trial court instructed the jury that only 10 jurors needed to agree on a verdict. In Case 675, the jury found defendant guilty of all three charges, and no jury poll was taken. In Case 862, the jury found defendant not guilty of kidnapping; guilty of both counts of coercion by 10-2 verdicts; guilty of strangulation by an 11-1 verdict, and guilty of fourth-degree assault by a 10-2 verdict. In Case 608, the jury found defendant guilty of felony eluding by a 10-2 verdict, guilty of methamphetamine possession by a unanimous verdict, and guilty of misdemeanor eluding by a unanimous verdict.

ANALYSIS

We first address defendant's supplemental assignments of error, in which he contends that the trial court [308 Or.App. 642] erred in instructing the jury that it could find him guilty by a nonunanimous verdict and in accepting the jury's verdicts thereafter.

Defendant was convicted of five serious offenses- three felonies and two Class A misdemeanors-based on nonunanimous jury verdicts: coercion (Counts 3 and 4), strangulation (Count 5), and fourth-degree assault (Count 6) in Case 862; and felony eluding (Count 1) in Case 608. Convicting a person of a serious offense based on a nonunanimous verdict violates the Sixth Amendment to the United States Constitution. Ramos v. Louisiana, 590 US, 140 S.Ct. 1390, 1396, 206 L.Ed.2d 583 (2020); see also State v. Wollam, 306 Or.App. 284, 285, 473 P.3d 1163 (2020) (Class A misdemeanors are serious offenses for purposes of the Sixth Amendment jury trial right). Defendant did not object to the jury instruction that only 10 jurors needed to agree on a verdict. However, the state concedes that the error is plain as to the five convictions on which the jury returned nonunanimous verdicts. We agree and exercise our discretion to correct the plain error for the reasons stated in State v. Ulery, 366 Or. 500, 504, 464 P.3d 1123 (2020).

We reach a different result as to the two convictions on which the jury returned unanimous guilty verdicts- the possession and misdemeanor eluding counts in Case 608[2]-and the three convictions as to which the jury was not polled-the three counts in Case 675. We reject defendant's Sixth Amendment challenge to those convictions. See State v. Kincheloe, 367 Or. 335, 339, __ P.3d __ (2020) (affirming two convictions entered on unanimous guilty verdicts, where, after being instructed incorrectly that only 10 jurors needed to agree on a verdict, the jury returned nonunanimous guilty verdicts on some charges but returned unanimous guilty verdicts on two charges); State v. Dilallo, 367 Or 340, __ P.3d __ (2020) (affirming conviction, where the jury was instructed incorrectly that only 10 jurors needed to agree on a verdict but no jury poll was taken).

[308 Or.App. 643] As to those five convictions, we proceed to the issue of whether the charges were properly joined, as defendant claims that they were not. When multiple offenses are alleged to have been committed by the same person, ORS 132.560 allows the charges to be joined in three circumstances, one of which is when the charged offenses are based on "two or more acts or transactions connected together or constituting parts of a common scheme or plan." ORS 132.560(1)(b)(C). The charges may be joined ab initio, or separate charging instruments may be consolidated to effectuate joinder. ORS 132.560(2). The purpose of the joinder 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 (2016). "If a defendant challenges the legality of joinder (that is, raises the issue of misjoinder), the court must first 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. Strouse, 276 Or.App. 392, 400, 366 P.3d 1185, rev den, 360 Or. 236 (2016). We broadly construe the joinder statute in favor of initial joinder. State v. Staley, 142 Or.App. 583, 589, 923 P.2d 650 (1996), rev den, 324 Or. 560, 931 P.2d 99 (1997). Whether charges are properly joined is "a legal determination subject to review for errors of law." Dewhitt, 276 Or.App. at 380.

Under ORS 132.560(1)(b)(C)-the subparagraph that allows joinder of charges based on two or more acts or transactions connected together or...

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