State v. Brown

Under State v. Garrett, 300 Or App 671 (2019), to determine if offenses are of the same or similar character, the Court will consider “factors such as the temporal proximity of the acts, similarities in the elements of the offenses, whether there will be similar evidence or evidentiary overlap, and whether the charges involve the same or similar victims, locations, intent, modus operandi, or acts.” Under State v. Dewhitt, 276 Or App 373 (2016), “offenses are ‘connected together or constituting parts of a common scheme or plan’ when they are ‘logically related, and there is a large area of overlapping proof between them.’”

Defendant was indicted on nine counts stemming from a September 1, 2018, head on collision after driving into oncoming traffic. Defendant was also indicted on four counts stemming from a December 21, 2018, traffic stop where he was discovered driving a stolen vehicle. The trial court joined the two indictments for a consolidated jury trial in which Defendant was found guilty on all counts. On appeal, Defendant assigned error to the trial court’s denial of his motion to sever the joinder of the two indictments in which he argued that “many of the charges were not of the same or similar character and were not sufficiently connected to be part of a common scheme or plan” as required for proper joinder of offenses by ORS 132.56(b). Under State v. Garrett, 300 Or App 671 (2019), to determine if offenses are of the same or similar character, the court will consider “factors such as the temporal proximity of the acts, similarities in the elements of the offenses, whether there will be similar evidence or evidentiary overlap, and whether the charges involve the same or similar victims, locations, intent, modus operandi, or acts.” Under State v. Dewhitt, 276 Or App 373 (2016), “offenses are ‘connected together or constituting parts of a common scheme or plan’ when they are ‘logically related, and there is a large area of overlapping proof between them.’” The Court reasoned that the unauthorized use of a vehicle (UUV), possession of methamphetamine, and felon in possession charges included in both indictments were of the same or similar character, and thus properly joined, because the elements of each offense were identical; Defendant used a similar modus operandi in the theft of the cars in both incidents; and the only difference between the two incidents was that Defendant possessed a firearm in the first incident and he possessed a knife that constituted a restricted weapon in the second. The Court, however, further reasoned that the remaining charges were not properly joined because the elements of the offenses were too dissimilar; the incidents occurred several months apart; the only similarity in the location was that the two incidents happened in the same county; and there was no evidentiary overlap between the two incidents. The Court held that the trial court’s error in joining the two indictments was not harmless because the use of evidence that would not have otherwise been cross-admissible was prejudicial to Defendant. Reversed and remanded.