State v. Warren

Under Article VII (Amended), section 3, 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.” State v. Poston, 277 Or App 137, 145 (2016).

Defendant appealed his conviction(s) for two counts of unlawfully obtaining public assistance, ORS 411.630(1); unlawfully obtaining food stamps, ORS 411.840(1); first-degree theft, ORS 164.055(1)(a); and unsworn falsification, ORS 162.085(1). The only assignment of error the Court addressed was whether the lower court erred by disallowing Defendant's demurrer to the indictment alleging improper joinder. On appeal, Defendant argued that, [a]pplying ORS 132.560 and State v. Poston, 277 Or App 137 (2016), adh’d to on recons, 285 Or App 750 (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.” In response, State argued that, in context of the entire charging instrument, first-degree theft was clearly of "the same or similar character" as the other charges. Under ORS 132.560(1)(b), two or more charges may be joined in a single charging instrument only if the criminal acts are alleged to have been committed by the same person(s), and are (1) “of the same or similar character;” (2) “based on the same act or transaction;” or (3) “based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” Under Article VII (Amended), section 3, 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.” State v. Poston, 277 Or App at 145 (2016). In this case, the Court of Appeals determined that all of the evidence presented at Defendant’s trial would have been “admissible” under a legally correct evidentiary analysis at a trial in which defendant was charged only with  first-degree theft. Furthermore, the Court found it was implausible that the trial court would have excluded that evidence on any discretionary ground. Affirmed.