State v. Smith

It was an error for the trial court to join cases where separate incidents involved different victims, different locations, and more than one month between. The misjoinder was reversible error in one conviction, but harmless in the other conviction had the cases been tried separately.

Defendant was charged with multiple offenses arising from three separate incidents and cases. The trial court, using ORS 132.560, consolidated the charges for trial and declined to sever them. The trial court held that the offenses were connected or constituted parts of a common scheme or plan. A jury convicted defendant of 10 offenses, five of which were non-unanimous verdicts. On appeal, the Court of Appeals held that these cases were misjoined under ORS 132.560(1)(b)(C), and explained that defendant's alleged offenses against the first victim are not logically related to alleged offenses against the second victim, which occurred a month later. The court concluded that it was an error to try all charges together. As to harmless error, the court considered whether the misjoinder 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. State v. Poston, 277 Or App 137, 145, 370 P3d 904 (2016), adh’d to on recons, 285 Or App 750, 399 P3d 488, rev den, 361 Or 886 (2017). The court found that key evidence from case 862 would not have been admissible in a trial in Case 675 (or vice versa) and that evidence was far from benign and concluded the misjoinder was not harmless as to the charges in Case 675. However, if case 608 was tried separately, at least some evidence regarding the outstanding charges against defendant would have been admissible as evidence that he knowingly fled the police under ORS 811.540(1)(b)(A)-(B). The court concluded that the misjoinder was reversible error as to defendant's convictions in Case 675 but not as to his possession and misdemeanor eluding convictions in Case 608. In Case No. 16CR68675, reversed and remanded. In Case No. 16CR75862, convictions on Counts 3 to 6 reversed and remanded; otherwise affirmed. In Case No. 17CR12608, conviction on Count 1 reversed and remanded; remanded for resentencing; otherwise affirmed