State v. Gialloreto

301 Or.App. 585

457 P.3d 1105

STATE of Oregon, Plaintiff-Respondent,

v.James Edward GIALLORETO, Defendant-Appellant.

A162216

Court of Appeals of Oregon.

Argued and submitted February 15, 2018.

December 26, 2019

Jesse Merrithew, Portland, argued the cause for appellant. Also on the brief was Levi Merrithew Horst PC.

Timothy A. Sylwester, Assistant Attorney General, argued the cause for respondent. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeHoog, Presiding Judge, and DeVore, Judge, and Aoyagi, Judge.^*

DEHOOG, P. J.

This appeal presents our first opportunity to apply our recent decision in State v. Garrett , 300 Or. App. 671, 455 P.3d 979 (2019), in which we construed the phrase "same or similar character" in the criminal code’s joinder provision, ORS 132.560(1)(b). Defendant’s appeal raises four assignments of error. Because it is dispositive, we address only the first. In that assignment, defendant argues that the trial court erred in denying his demurrer to the indictment, which was premised on the indictment’s failure to allege a sufficient basis for joinder. As we explain below, we agree that the trial court erred in denying defendant’s demurrer and proceeding to try all counts of the indictment in a single trial.¹ The indictment neither expressly alleges a statutory basis for joinder nor contains allegations of fact sufficient to demonstrate compliance with the joinder statute. Specifically, the allegations of the indictment do not indicate that Counts 8 through 11 of the indictment, each of which alleged an identical count of public indecency, were of the "same or similar character" as the balance of the charges; as a result, the trial court erred in denying defendant’s demurrer. That error was not harmless. We therefore reverse and remand.

The indictment in this case charged defendant with rape in the first degree, ORS 163.375 (Count 1); robbery in the first degree, ORS 164.415 (Count 2); burglary in the first degree, ORS 164.225 (Count 3); assault in the second degree, ORS 163.175 (Count 4); two counts of unlawful use of a weapon, ORS 166.220 —one count alleging the use of a hammer (Count 5), the other the use of a knife (Count 6)—strangulation, ORS 163.187 (Count 7); and four counts of public indecency, ORS 163.465 (2015) amended by Or. Laws 2019, ch. 65, § 1 (Counts 8 through 11). Defendant’s charges arose after the complainant, J, who was an upstairs neighbor of defendant, reported to police that he had forced his way into her apartment, attacked her with a hammer, threatened her with a knife, choked her with a ligature, and then raped her. J testified to those events at trial and said that she had offered to give defendant money if he would leave and not rape her, but that he had both taken her money and raped her. In support of the public-indecency allegations, J also testified that she had seen defendant masturbating in his home through a window near the base of her stairway. J’s daughter testified that she had heard defendant watching pornography and masturbating the day that J moved into defendant’s building. Finally, another of defendant’s neighbors also testified that she had heard him masturbating.

The indictment alleged that six of the first seven counts—those alleging rape, robbery, assault, strangulation, and two acts of unlawful use of a weapon—had all been committed against J on or about June 10, 2015.² The last four counts, on the other hand, alleged neither a victim nor a specific offense date. Rather, those four counts each alleged the offense of public indecency in identical terms, as follows:

"In a separate act and transaction from the crimes alleged in the above counts, the defendant, on or between May 1, 2015 and June 10, 2015, in Washington County, Oregon, did unlawfully and with intent of arousing the sexual desire of defendant or another person, expose his genitals while in view of a public place."

Before trial, defendant filed a demurrer under ORS 135.630 and argued that the indictment failed to satisfy ORS 132.560, because it did not allege any basis for joining the public-indecency charges, Counts 8 through 11, with the remaining charges, Counts 1 through 7. The trial court denied defendant’s demurrer. Defendant waived his right to a jury and, following a bench trial, was convicted on all counts. This appeal followed.

"We review the disallowance of a demurrer for legal error." State v. Miller , 296 Or. App. 421, 422, 439 P.3d 504 (2019). In his opening brief, defendant argued—based on our decision in State v. Poston , 277 Or. App. 137, 370 P.3d 904 (2016) ( Poston I ), adh’d to on recons. , 285 Or. App. 750, 399 P.3d 488, rev. den. , 361 Or. 886, 403 P.3d 761 (2017) —that the trial court had erred in disallowing his demurrer, because the indictment in his case did not comply with the joinder requirements of ORS 132.560(1)(b).³ In the state’s response, which it filed before the Supreme Court had issued its decisions in State v. Warren , 364 Or. 105, 430 P.3d 1036 (2018), and State v. Taylor , 364 Or. 364, 434 P.3d 331 (2019), it argued that defendant’s argument was wrong for two reasons. The state first argued that our decision in Poston I was itself incorrect, because the question of whether an indictment complied with the joinder requirements of ORS 132.560 (1)(b) was not, as we had held in that case, a question of facial sufficiency, but a matter to be decided as a factual inquiry in the context of a motion to sever. That argument is now foreclosed by Warren . 364 Or. at 113, 430 P.3d 1036. Second, the state argued that, even if our decision in Poston I correctly stated the law, the indictment here alleged a sufficient basis for joinder because the charges were all "sexual offenses." We proceed to consider whether, under current case law, defendant’s public-indecency charges were properly joined with the balance of his alleged offenses for trial.

An indictment that charges more than one offense must allege one or more of the authorized bases for joinder listed under ORS 132.560(1)(b), namely, that the charges are "(A) Of the same or similar character," "(B) Based on the same act or transaction," or "(C) Based on two or more transactions connected together or constituting parts of a common scheme or plan." See Warren , 364 Or. at 109-10, 430 P.3d 1036 (discussing our decision in Poston I ); ORS 135.630(2) (authorizing demurrer if the indictment "does not substantially conform to the requirements of * * * [ORS] 132.560"). "[A]n indictment can allege the basis for joinder either ‘in the language of the joinder statute [ ORS 132.560(1)(b) ] or by alleging facts sufficient to establish compliance with the joinder statute.’ " Taylor , 364 Or. at 375, 434 P.3d 331 (quoting Warren , 364 Or. at 109, 430 P.3d 1036, and adopting the analysis set forth in Poston I ). If the state chooses to rely on factual allegations to establish joinder, the indictment should "allow the defendant to understand the state’s basis for joining the offenses and allow the court to determine whether that joinder is proper." Taylor , 364 Or. at 375, 434 P.3d 331. Whether an indictment’s joinder allegations are sufficient to withstand a demurrer "must be resolved based on the face of the charging instrument"; a court "cannot consider facts other than those alleged in the charging instrument." Warren , 364 Or. at 113, 430 P.3d 1036 (citing State v. Pinnell , 319 Or. 438, 444, 877 P.2d 635 (1994) ).

Here, it is undisputed that the indictment does not expressly allege a basis for joinder using the language of ORS 132.560(1)(b). Thus, we consider whether the indictment’s factual allegations are sufficient to demonstrate compliance with that provision. See Taylor , 364 Or. at 375, 434 P.3d 331 (providing for that approach). Further, we focus our attention on ORS 132.560(1)(b)(A), which authorizes the joinder of offenses of the "same or similar character," because the parties agree that only that provision provides a potential basis for joinder here.⁴

In the state’s view, defendant’s public-indecency charges satisfy "the same or similar character" requirement of ORS 132.560(1)(b)(A) because they, like Counts 1 though 7, are all "sexual offenses."⁵ The merit of that argument depends on the meaning of the phrase "same or similar character." That, in turn, presents a question of statutory construction, evoking the familiar interpretive framework set forth in State v. Gaines , 346 Or. 160, 171-73, 206 P.3d 1042 (2009). In this case, however, both our understanding of the phrase "same or similar character" and our review of the indictment in light of that understanding are substantially guided by our decision in Garrett , which undertook the same analysis. Accordingly, we turn to an examination of that case.

In Garrett , the defendant was charged by indictment with one count of first-degree sodomy and one count of first-degree sexual abuse, both alleged to have been committed against the same child, as well as 15 counts of first-degree encouraging child sexual abuse (ECSA). 300 Or. App. at 675, 455 P.3d 979. Before trial, the defendant filed a demurrer, arguing that the indictment was defective because it failed to allege any basis for joining the ECSA charges with his charges of sodomy and sexual abuse. Id . The state responded that the charges were properly joined as being of "the same or similar character," ORS 132.560(1)(b)(A) ; specifically, they all related to the sexual abuse of a child. Id . at 676, 455 P.3d 979. The trial court denied the defendant’s demurrer, and, following a joint trial on all counts, the defendant appealed that ruling. Id . at 676, 678, 455 P.3d 979.

On appeal, we recognized, as we had previously, that ORS 132.560(1)(b), and, specifically, the "same or similar character" language of ORS 132.560(1)(b)(A), is modeled after FRCrP 8(a) ; we also observed that " ‘the legislators who approved the amendment [adopting that phrase]...