State v. Dewhitt

Under ORS 132.560(1)(b)(C), charges may be joined for trial where they are connected together because the offenses occurred in the same time and space, the investigation renders evidence for multiple charges, and material witnesses substantially overlap.

Defendant appealed judgments of conviction for harassment and unlawful possession of marijuana, charges that were charged under separate charging instruments but joined for trial under ORS 132.560. While driving, Defendant physically assaulted his girlfriend. When police arrived officers searched the car and discovered evidence of the struggle as well as a bag with marijuana, a scale and measuring spoons. At trial, Defendant argued the court erred in joining the charging instruments and also in denying a motion to sever them. Defendant also assigned error to the trial court’s grant of the State’s motion in limine barring Defendant from asserting a “choice-of-evils” defense for the marijuana possession charge. The trial court found the joinder was appropriate under ORS 132.560(1)(b)(C) because the charges were based on “two or more acts or transactions connected together or constituting parts of a common scheme or plan” and denied Defendant’s motion to sever because Defendant would not be substantially prejudiced. On appeal, Defendant argued the charges could only be joined if the evidence significantly overlapped and evidence from one charge was necessary to proving the other charge. After analysis of the legislative history and purpose of ORS 132.560(1), Johnson, 199 Or App 305, and Wittwer, 214 Or App 459, the Court held the circumstances of this case were sufficient to establish the charges were “connected together” due to the temporal and spatial concurrence of the offenses, the circumstances of the investigation, and the overlap of material witnesses. The Court also held the trial court did not err in denying Defendant a choice-of-evils defense because Defendant had another course of action available, an element of ORS 161.200. Affirmed.