State v. Walsh

Under ORS 132.560(1)(b), a charging instrument may typically charge one offense, but may provide for multiple offenses if they were executed by the same person(s), and are "of the same or similar character," occurred during "the same act or transaction," or are connected by "a common scheme or plan." If the requirements of ORS 132.560 are not met, and evidence of the improperly joined charge(s) is unlikely to have been admissible in a separate trial, the error is harmless if there is "little likelihood that the inadmissible evidence would [affect] the verdict in that separate trial." State v. Poston, 277 Or App 137, 145, (2016).

Defendant appealed a judgment of conviction for multiple offenses pertaining to burglary, robbery, drug possession, and unlawful operation of a motor vehicle. Defendant assigned error to the trial court's denial of his demurrer. On appeal, Defendant argued that because the state failed to demonstrate that the charging instrument satisfied the joinder requirements, the trial court improperly denied his demurrer. Under ORS 132.560(1)(b), a charging instrument may typically charge one offense, but may provide for multiple offenses if they were executed by the same person(s), and are "of the same or similar character," occurred during "the same act or transaction," or are connected by "a common scheme or plan." If the requirements of ORS 132.560 are not met, and evidence of the improperly joined charge(s) is unlikely to have been admissible in a separate trial, the error is harmless if there is "little likelihood that the inadmissible evidence would [affect] the verdict in that separate trial." State v. Poston, 277 Or App 137, 145, (2016). The Court of Appeals determined that while some of the supporting evidence for the burglary and robbery charges might have been inadmissible in a separate trial, it is unlikely that this would have affected the verdict. However, the Court held that, in regard to the driving-related charges, it is likely that at least some of the evidence would have been excluded, and the likelihood of this affecting that verdict was indeterminable. Accordingly, the Court held that the exclusion of Defendant's demurrer was not harmless. Convictions on Counts 7, 8, 9, 10, and 11 reversed; remanded for resentencing; otherwise affirmed.