State v. Warren, A156423

• Decision Date: 02 August 2017
• Docket Number: A156423
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Christopher Ramoan WARREN, Defendant-Appellant.
• Court: Oregon Court of Appeals

287 Or.App. 159

399 P.3d 1060

STATE of Oregon, Plaintiff-Respondent,

v.Christopher Ramoan WARREN, Defendant-Appellant.

A156423

Court of Appeals of Oregon.

Submitted April 19, 2016.

August 2, 2017

Rankin Johnson IV filed the briefs for appellant.

Ellen F. Rosenblum, Attorney General, Paul L. Smith, Deputy Solicitor General, and Cecil A. Reniche-Smith, Assistant Attorney General, filed the answering brief for respondent. On the supplemental brief were Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Timothy A. Sylwester, Assistant Attorney General.

Before Tookey, Presiding Judge, and DeHoog, Judge, and Sercombe, Senior Judge.

TOOKEY, P. J.

Defendant appeals from a judgment of conviction for two counts of unlawfully obtaining public assistance, ORS 411.630(1), one count of unlawfully obtaining supplemental nutrition assistance (food stamps), ORS 411.840(1), one count of first-degree theft, ORS 164.055(1)(a), and one count of unsworn falsification, ORS 162.085(1). Defendant raises two assignments of error, the first of which we reject without discussion. We write only to address defendant's second assignment of error, in which he argues that the trial court erred when it disallowed his demurrer to the indictment. We conclude that the court's disallowance of the demurrer was harmless. Accordingly, we affirm.

The facts of this case are not in dispute. Defendant worked as a police officer for the City of Beaverton. In January 2011, defendant was fired from the Beaverton Police Department and then he was rehired in October 2011. While defendant was unemployed, he received public assistance and food stamps from the State of Oregon.¹ An investigation by the Department of Human Services (DHS) led DHS to believe that defendant had received $3,351.11 in public benefits to which he was not entitled. The investigation revealed that defendant had lied on forms to obtain those public benefits and that defendant had also failed to report income. Defendant was indicted for various crimes related to his receipt of public benefits. The indictment alleged as follows:

"Count 1

"The defendant, on or between January 27, 2011 and December 31, 2011, in Washington County, Oregon, did unlawfully and knowingly obtain public assistance for the benefit of himself and others to which the said defendant was not entitled under Oregon Law by means of false representation, to wit: his residence address.

"Count 2

"The defendant, on or between October 1, 2011 and December 31, 2011, in Washington County, Oregon, did unlawfully and knowingly obtain public assistance for the benefit of himself and others to which the said defendant was not entitled under Oregon Law by means of failing to immediately notify the Department of Human Services or the Oregon Health Authority of the receipt of income, which directly affected his eligibility for the assistance.

"Count 3

"The defendant, on or between January 27, 2011 and December 31, 2011, in Washington County, Oregon, did unlawfully and knowingly obtain supplemental nutritional assistance to which he was not entitled to receive under Oregon law.

"Count 4

"The defendant, on or between January 27, 2011 and December 31, 2011, in Washington County, Oregon, did unlawfully and knowingly commit theft of money, of the value of one thousand dollars or more, the property of the State of Oregon.

" * * * * *

"Count 7

"The defendant, on or about October 24, 2011, in Washington County, Oregon, did unlawfully and knowingly make a false written statement, to wit: City of Beaverton Affidavit of Marriage or Domestic Partnership, to a public servant in connection with an application for a benefit."²

Defendant filed a "demurrer to the indictment for violation of ORS 132.560," arguing that " ORS 135.630 requires dismissal of an accusatory instrument 'when it appears on the face thereof' that the instrument fails to comply with ORS 132.560."³ Defendant stated that "the indictment merely lists each offense using the words of the statute without stating that the various charges are sufficiently similar or connected" and, thus, "the indictment on its face fails to meet the joinder requirements of ORS 132.560(1)(b)." The state responded, contending that "all seven counts are involved with using some false or fraudulent methodology to obtain benefits" so the counts "are enough of a same or similar character to allow for joinder" under ORS 132.560(1)(b)(A). The trial court agreed with the state and disallowed defendant's demurrer. Following a jury trial, as noted, defendant was convicted of two counts of unlawfully obtaining public assistance, one count of unlawfully obtaining food stamps, one count of first-degree theft, and one count of unsworn falsification.

On appeal, defendant argues that, "[a]pplying ORS 132.560 and [State v. ] Poston [, 277 Or.App. 137, 370 P.3d 904 (2016), adh'd to on recons , 285 Or. App. 750, 399 P.3d 488 (2017) ], the charges in this case could not be properly combined into a single accusatory instrument" because, "as explained in Poston , the connection between the offenses must be expressly alleged." Defendant contends that, "[i]n particular, count four, theft, alleging the theft of more than $1000 and no other details about the state's theory, cannot be joined for trial with allegations of unlawfully obtaining public assistance or unsworn falsification" because "[t]he offenses are not of the same or similar character."

The state argues that the charges of unlawfully obtaining public benefits (Counts 1, 2, and 3), and the charge of unsworn falsification to a public servant in connection with an application for a benefit, (Count 7) "obviously are of the 'same or similar character.' " Additionally, the state contends that, when viewed in context with those charges, the theft charge (Count 4) is of the same or similar character because "that count further specially alleged that the crime involved 'theft of money, of the value of one thousand dollars or more, the property of the State of Oregon.' "

In Poston , we held that the state is "required to allege in the charging instrument the basis for joinder of the crimes that are charged in it, whether by alleging the basis for joinder in the language of the joinder statute or by alleging facts sufficient to establish compliance with the joinder statute." 277 Or.App. at 144-45, 370 P.3d 904.

In this case, the indictment does not include language from the joinder statute. We agree with the state that the facts alleged in the indictment for the charges of unlawfully obtaining public benefits, and the charge of unsworn falsification to a public servant in connection with an application for any benefit, establish that they are of "the same or similar character." ORS 132.560(1)(b)(A).

Assuming without deciding that alleging the theft "of money" from the State of Oregon is insufficient to establish that the charge of first-degree theft is of "the same or similar character" as the charges related to unlawfully obtaining public benefits and unsworn falsification as specified in Counts 1, 2, 3, and 7, we nonetheless conclude that any such error in joining the charges on that basis is harmless. "Under Article VII (Amended), section 3, of the Oregon Constitution,^{[4 ]} we must affirm a conviction if there is little likelihood that an error affected the verdict."

Poston , 277 Or.App. at 145, 370 P.3d 904 (citation, internal quotation marks, and brackets omitted); see also State v. Davis , 336 Or. 19, 32, 77 P.3d 1111 (2003) ("Oregon's constitutional test for affirmance despite error consists of a single inquiry: Is there little likelihood that the particular error affected the verdict?"). "[W]hether improper joinder of charges affected...