State v. Miller

“An indictment that charges more than one offense must allege one or more of the bases for joinder in ORS 132.560(1)(b)(A) to (C): that the charges are ‘[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.’ If the indictment does not allege the basis for joinder, then the defendant may demur to the indictment.” State v. Warren, 364 Or 105, 121-22, 430 P3d 1036 (2018); ORS 135.630(2).

Defendant appealed his conviction of four counts of sexual abuse in the first-degree. Defendant was charged by indictment with 23 counts alleging various sexual offenses and one count of tampering with a witness. Defendant appealed the trial court’s dismissal of his demurrer to the indictment arguing that it failed to properly allege the basis for joinder of the separate offenses. In response, the state argued that the witness-tampering count was properly joined under ORS 132.560(1)(b)(C) as “connected together or constituting part of a common scheme or plan” with the other counts. “An  indictment that  charges  more than  one  offense must  allege  one or  more  of the  bases  for joinder  in  ORS  132.560(1)(b)(A) to (C): that the charges are ‘[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.’ If the indictment does not allege the basis for joinder, then the defendant may demur to the indictment.” State v. Warren, 364  Or 105,  121-22,  430 P3d  1036  (2018); ORS  135.630(2). The Court found that neither the witness-tampering count, not the balance of the indictment, alleged any basis for joinder in the language of ORS 132.560(1)(b). Thus, the Court held that the trial court erred and Defendant’s demurrer should not have been dismissed. Reversed and remanded.