State v. Warren

• Decision Date: 06 December 2018
• Docket Number: CC C130904CR (SC S065338)
• Citation: 430 P.3d 1036,364 Or. 105
• Parties: STATE of Oregon, Respondent on Review, v. Christopher Ramoan WARREN, Petitioner on Review.
• Court: Oregon Supreme Court

364 Or. 105

430 P.3d 1036

STATE of Oregon, Respondent on Review,

v.Christopher Ramoan WARREN, Petitioner on Review.

CC C130904CR (SC S065338)

Supreme Court of Oregon.

Argued and submitted June 13, 2018.

December 6, 2018

Ernest G. Lannet, Chief Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for the petitioner on review.

Timothy A. Sylwester, Assistant Attorney General, Salem, argued the cause and filed the brief for the respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

DUNCAN, J.

In this criminal case, defendant was charged with multiple offenses in a single indictment. Defendant demurred to the indictment on the ground that it did not allege the basis for joining the charges. The trial court disallowed the demurrer, the case proceeded to a jury trial, and defendant was convicted. Defendant appealed, and the Court of Appeals held that an indictment that charges a defendant with more than one offense must allege the basis for joining the charges, but that any error in the indictment in this case was harmless. State v. Warren , 287 Or. App. 159, 399 P.3d 1060 (2017). For the reasons explained below, we affirm.

I. FACTS

The relevant facts are procedural. A grand jury issued an indictment charging defendant with seven offenses. Specifically, the indictment charged defendant with two counts of unlawfully obtaining public assistance, in violation of ORS 411.630 (Counts 1 and 2); one count of unlawfully obtaining food stamps, in violation of ORS 411.840 (Count 3); one count of theft in the first degree, in violation of ORS 164.055 (Count 4); and three counts of unsworn falsification, in violation of ORS 162.085 (Counts 5, 6, and 7). The indictment alleged that some of the offenses were committed during date ranges and others were committed on specific dates. The date ranges and dates overlapped and spanned eleven months. The indictment did not allege that the offenses were related in any of the three ways required by the joinder statute, ORS 132.560. That is, it did not allege that they were "[o]f the same or similar character," "[b]ased on the same act or transaction," or "[b]ased on two or more acts or transactions connected together or constituting parts of a common scheme or plan." ORS 132.560(1)(b).¹

Defendant filed a demurrer to the indictment, pursuant to ORS 135.630(2), which authorizes a defendant to demur to an indictment on the ground that "it does not substantially conform to the requirements" of certain statutes, including the joinder statute, ORS 132.560. In his demurrer, defendant asserted that the indictment violated the joinder statute because it failed to allege the basis for joinder of the charges. Specifically, defendant asserted, "[T]he indictment merely lists each offense using the words of the statute without stating that the various charges are sufficiently similar or connected. Thus, the indictment on its face fails to meet the joinder requirements of ORS 132.560(1)(b)."

The trial court held a hearing on defendant's demurrer, during which the state asserted that the indictment alleged the basis for joinder. According to the state,

"going strictly from the four corners of the document, it's obvious that * * * all seven counts are involved with using some false or fraudulent methodology to obtain benefits. * * * [B]ased on that alone, the seven acts are enough of a same or similar character to allow for joinder."

The trial court disallowed the demurrer. See ORS 135.660 ("Upon considering the demurrer, the court shall give judgment, either allowing or disallowing it, and an entry to that effect shall be made in the register.")

Defendant did not make any other challenges to the joinder of the charges. He did not assert that the evidence, as it became known to him through discovery and trial, was insufficient to support joinder. And he did not assert that, even if the evidence was sufficient, joinder resulted in substantial prejudice. He did not move to sever the charges or to have the state elect between them.

At trial, the state presented evidence that, after defendant was terminated from his position as a Beaverton police officer in January 2011, he applied for food stamp benefits, which he then received through December 2011. During that time period, defendant moved to Washington, but he did not inform the benefits agency of the move and, after the move, he completed two benefits forms on which he listed an Oregon address as his residence. In October 2011, defendant was reinstated to his police officer position and received back pay, but did not report the back pay to the benefits agency. After being reinstated, defendant completed an "affidavit of marriage or domestic partnership," listing his girlfriend as a co-beneficiary of his employment benefits. In the affidavit, defendant stated that he was not married, which was false, because he was still married to his estranged wife.

The jury found defendant not guilty of two of the unsworn falsification counts (Counts 5 and 6), which were based on his listing the Oregon address as his residence on the two benefits forms, and guilty of the remaining five counts (Counts 1-4 and 7).

Defendant appealed, assigning error to the trial court's disallowance of his demurrer. In support of that assignment, he relied on the Court of Appeals' decision in State v. Poston , 277 Or. App. 137, 370 P.3d 904 (2016) ( Poston I ), adh'd to on recons , 285 Or. App. 750, 399 P.3d 488 ( Poston II ), rev. den. , 361 Or. 886, 403 P.3d 761 (2017), which was issued after his trial.

In Poston I , the Court of Appeals ruled that the state is "required to allege in the charging instrument the basis for the 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." Poston I, 277 Or. App. at 144-45, 370 P.3d 904. Because the indictment in Poston I did not comply with that requirement, the Court of Appeals held that the trial court had erred by disallowing the defendant's demurrer to the indictment.

Id. at 145, 370 P.3d 904. The Court of Appeals then considered whether the error required reversal. In doing so, it applied Article VII (Amended), section 3, of the Oregon Constitution, which provides that an appellate court shall affirm a trial court's judgment, notwithstanding any error committed during the trial, if the appellate court is of the opinion that the judgment "was such as should have been rendered." To determine whether the error was "harmless" for the purposes of Article VII (Amended), section 3, the Court of Appeals focused on the effect of the joinder on the jury's verdict. Poston I , 277 Or. App. at 145-46, 370 P.3d 904 ; see State v. Davis , 336 Or. 19, 33, 77 P.3d 1111 (2003) (holding that evidentiary error is harmless for the purposes of Article VII (Amended), section 3, if "there is little likelihood that the error affected the verdict"). The Court of Appeals ruled that "whether improper joinder of charges affected the verdict depends on whether joinder led to the admission of evidence that would not have been admissible but for the joinder * * * and, if so, whether that evidence affected the verdict on those charges." Poston I , 277 Or. App. at 145, 370 P.3d 904.²

Thus, in Poston I , the Court of Appeals ruled that an indictment that charges multiple offenses must allege the basis for joinder, and, if an indictment fails to do so and a defendant demurs to the indictment based on that failure, it is error for the trial court to disallow the demurrer. The Court of Appeals also ruled that Article VII (Amended), section 3, applies to the erroneous disallowance of a demurrer based on the failure to allege the basis for joinder, and, therefore, the erroneous disallowance of such a demurrer will not result in reversal if it is harmless, and whether it is harmless depends on whether evidence admitted when the charges were tried together would not have been admitted if the charges had been tried separately and, if so, whether that evidence affected the verdicts.

In this case, defendant relied on Poston I to argue that the trial court erred by disallowing his demurrer to the indictment, which, as described above, charged him with two counts of unlawfully obtaining public assistance, one count of unlawfully obtaining food stamps, one count of first-degree theft, and three counts of unsworn falsification, committed over a period of eleven months. Defendant argued that, like the indictment in Poston I , the indictment did not allege the basis for joining the charges and, therefore, the trial court erred by disallowing his demurrer. Defendant further argued that the error was not harmless.

Applying Poston I , the Court of Appeals held that the allegations in the indictment were sufficient to support joinder of some of the charges. Warren , 287 Or. App. at 163, 399 P.3d 1060. Specifically, the Court of Appeals held that "the facts alleged in the indictment for the charges of unlawfully obtaining public benefits, and the charge of unsworn falsification * * * establish that they are of ‘the same or similar character.’ " Id. But the Court of Appeals did not determine whether the allegations in the indictment were sufficient to establish that the first-degree theft charge was "of the same or similar character" as the other charges. Id.

Instead, the Court of Appeals assumed, without deciding, that the allegations were insufficient in that regard and, therefore, the trial court had erred in disallowing defendant's demurrer. Having made that assumption, the Court of Appeals turned to the question of whether the assumed error was harmless, explaining that, under Poston I , that question required it "to examine the erroneously joined charges as if they had been tried separately and determine whether ‘[a]ll of the evidence that was...