State v. Pack

403 P.3d 542, 287 Or. App. 254, 2017 Ore. App. LEXIS 959
CourtCourt of Appeals of Oregon
DecidedAugust 16, 2017
Docket15CR39156; A160674
StatusPublished

This text of 403 P.3d 542 (State v. Pack) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
State v. Pack, 403 P.3d 542, 287 Or. App. 254, 2017 Ore. App. LEXIS 959 (Or. Ct. App. 2017).

Opinion

TOOKEY, J.

Defendant appeals a judgment finding him in contempt of court, ORS 135.290, for violating a no-contact order that the court had imposed in a separate case for fourth-degree assault and harassment. The court entered an order consolidating the charging instrument in the contempt of court case and the charging instrument in the assault and harassment case for trial. Defendant assigns error to the trial court’s consolidation of the charging instruments. We conclude that the consolidation of the charging instruments was harmless. Accordingly, we affirm.

The facts of this case are not in dispute. On October 28, 2014, defendant was arrested and charged with fourth-degree assault and harassment. Defendant was released from custody the following day and, as a condition of his pretrial release, the court prohibited contact between defendant and the complainant.

On January 13, 2015, defendant’s pretrial release was revoked because he failed to report to his supervising officer. Defendant was taken into custody, and he called the complainant from a jail telephone seven times. The following day, defendant was arraigned and released.

On March 26, defendant’s supervising officer wrote a failure to comply warrant and informed defendant that he needed to turn himself in. On August 27, defendant was arrested and taken into custody on that warrant. While he was in custody, defendant called the complainant from a jail telephone four more times. On September 9, the state charged defendant with 11 counts of contempt for the 11 calls that defendant had placed to the complainant from a jail telephone.

At a pretrial conference, the state moved to consolidate the charging instrument in the assault and harassment case with the charging instrument in the contempt case. The state argued that, under ORS 132.560,1 the charges [256]*256could be joined because the charges alleged in the two cases are “based on two or more transactions that are connected together.” The state continued, stating that “there would be no opportunity for prejudice to the defendant” because “the contempt will be heard by the court” and “the criminal case will be heard by the jury.” Defendant opposed the state’s motion for joinder on that ground and moved for severance.

The court concluded that the cases could be consolidated, and the charges could be joined, because the charges were “based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” ORS 132.560(l)(b)(C). The court also ruled that defendant would not be prejudiced by the consolidation of the cases because the assault and harassment case would be tried to a jury and the contempt case would be heard by the court outside of the jury’s presence.

The court stated that, “when the jury’s not present,” it “would hear the additional evidence that the court would need to hear in order to determine the contempt proceeding.” The court explained the trial procedure as follows, “I think the procedure is, we’ll try to keep it clean and pristine so the evidence is not heard by the jury that I’m going to hear, and I will consider only the evidence that’s presented to me for purposes of determining the Contempt.” The jury acquitted defendant of the assault and harassment charges and the court found defendant in contempt on all 11 of the charged contempt counts.

On appeal, defendant argues that “[j]oinder was improper because the assault and contempt cases were not ‘connected together’ and were not part of a ‘common scheme or plan.’” Furthermore, citing to State v. Poston, 277 Or App 137, 370 P3d 904 (2016), adh’d, to on recons, 285 Or App 750, 399 P3d 488 (2017), defendant contends that the “erroneous [257]*257joinder of the assault and contempt cases was harmful and merits reversal” because “the joinder of the cases allowed the court to hear evidence in the contempt case that would not have been admissible but for the joinder—namely, the details of the assault case.”2 The state argues that the “trial court correctly joined the charges for trial, and, in any event, any error was harmless.”

ORS 132.560 provides, in pertinent part:
“(1) A charging instrument must charge but one offense, and in one form only, except that:
‡⅜⅜*
“(b) Two or more offenses may be charged in the same charging instrument in a separate count for each offense if the offenses charged are alleged to have been committed by the same person or persons and are:
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“(C) Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
“(2) If two or more charging instruments are found in circumstances described in subsection (l)(b) of this section, the court may order them to be consolidated.”

Assuming without deciding that the trial court erred when it concluded that the joinder of the charged offenses was proper under ORS 132.560(l)(b)(C) and, therefore, the cases could be consolidated under ORS 132.560(2), we conclude that any such error was harmless. “Under Article VII (Amended), section 3, of the Oregon Constitution,[3] we must affirm a conviction if there is little likelihood that an error affected the verdict.” Poston, 277 Or App at 145 (citation, internal quotation marks, and brackets omitted); see also [258]*258State v. Davis, 336 Or 19, 32, 77 P3d 1111 (2003) (“Oregon’s constitutional test for affirmance despite error consists of a single inquiry: Is there little likelihood that the particular error affected the verdict?”). “[W]hether improper joinder of charges affected the verdict depends on whether joinder 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 on those charges.” Poston, 277 Or App at 145. That analysis requires us to examine the erroneously joined charges as if they had been tried separately and determine whether “all of the evidence that was presented at defendant’s trial would have been admissible.” Id. at 146.

“Poston demonstrates that evidence presented at trial on erroneously joined charges would be ‘admissible,’ as we used that term in Poston,

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Related

State v. Davis
77 P.3d 1111 (Oregon Supreme Court, 2003)
State v. Klontz
308 P.3d 214 (Court of Appeals of Oregon, 2013)
State v. Dewhitt
368 P.3d 27 (Court of Appeals of Oregon, 2016)
State v. Poston
370 P.3d 904 (Court of Appeals of Oregon, 2016)
State v. Poston
399 P.3d 488 (Court of Appeals of Oregon, 2017)
State v. Clardy
401 P.3d 1188 (Court of Appeals of Oregon, 2017)
State v. Marks
400 P.3d 951 (Court of Appeals of Oregon, 2017)
State v. Miller
401 P.3d 229 (Court of Appeals of Oregon, 2017)

Cite This Page — Counsel Stack

Bluebook (online)
403 P.3d 542, 287 Or. App. 254, 2017 Ore. App. LEXIS 959, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-v-pack-orctapp-2017.