State v. Garrett , 300 Or. App. 671 ( 2019 )

671
Submitted August 29, 2018, reversed and remanded for entry of judgment
allowing defendant’s demurrer November 27, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
JAMES EDWARD GARRETT,
Defendant-Appellant.
Lane County Circuit Court
15CR16836; A161935
455 P3d 979
Defendant appeals a judgment of conviction for one count of first-degree sod-
omy, one count of first-degree sexual abuse, one count of first-degree encouraging
child sexual abuse (ECSA), and 10 counts of second-degree ECSA. Defendant
argues that the trial court erred when it disallowed his demurrer, because the
charges were improperly joined in the indictment. Held: The Court of Appeals
looked to federal law for guidance in the court’s interpretation of the “same or
similar character” language in the joinder statute, ORS 132.560(1)(b)(A), and
concluded that the trial court erred when it disallowed defendant’s demurrer and
the disallowance of the demurrer was not harmless.
Reversed and remanded for entry of judgment allowing defendant’s demurrer.
R. Curtis Conover, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Kristin A. Carveth, Deputy Public Defender,
Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Timothy A. Sylwester, Assistant
Attorney General, filed the brief for respondent.
Before Armstrong, Presiding Judge, and Tookey, Judge,
and Sercombe, Senior Judge.
TOOKEY, J.
Reversed and remanded for entry of judgment allowing
defendant’s demurrer.
672 State v. Garrett
TOOKEY, J.
Defendant appeals a judgment of conviction for one
count of first-degree sodomy against a victim under 12 years
of age, ORS 163.405(1)(b), one count of first-degree sexual
abuse against the same victim, a child under 14 years of
age, ORS 163.427(1)(a)(A), one count of first-degree encour-
aging child sexual abuse (ECSA), ORS 163.684, and 10
counts of second-degree ECSA, ORS 163.686. Defendant
raises 16 assignments of error. We write only to address
defendant’s second assignment of error, in which he argues
that the trial court erred when it disallowed his demurrer
to the indictment.1 We conclude that the trial court erred
when it disallowed defendant’s demurrer and that the disal-
lowance of the demurrer was not harmless. Accordingly, we
reverse and remand for entry of judgment allowing defen-
dant’s demurrer.
I. BACKGROUND
The relevant facts are undisputed. J is defendant’s
cousin. Defendant was watching J’s son and stepdaughter,
K, while J went on a camping trip with his wife. Shortly
after leaving to go on their camping trip, J realized that he
had forgotten the can opener and decided to return home to
pick it up. J ran into the house while his wife waited in the
car. When J got inside, he saw that his son was watching
television by himself in the living room and that J’s bedroom
door was closed. When J tried to turn the bedroom door han-
dle, it was locked, and J heard K tell her little brother, whom
she thought was at the door, to go away. J grabbed a flathead
screwdriver and opened the door within 45 seconds. When J
opened the door, he saw “[defendant’s] bare buttocks, and he
had his jacket and shirt on, but he was naked from the waist
down pulling his pants up at the time saying, ‘I messed up.
I messed up.’ ” J also saw that K was “naked from the waist
down with her panties and pants on the floor * * * and a con-
fused look on her face.” J said, “Oh, hell, no,” went outside,
grabbed his phone, and called the police while defendant sat
on the front porch.
1
Our resolution of defendant’s second assignment of error obviates the need
to address his remaining assignments of error.
Cite as 300 Or App 671 (2019) 673
Officer Molaski arrived shortly thereafter and inter-
viewed defendant about J’s report of sexual abuse. Defendant
admitted that he “was caught in a compromising position”
when “[h]e and his 9-year-old cousin were in the bedroom
naked together,” and told Molaski, “I know what I did was
wrong. I’m the adult.” Defendant was read his Miranda
rights and agreed to go down to the police station to discuss
what had happened.
Detective Grice arrived at J’s home and interviewed
K. K told Grice that defendant had put a video on the com-
puter in the bedroom that showed adults in different sexual
“positions,” which K described as “inappropriate behavior.”
When Grice asked K how she ended up in the bedroom, K
said that “defendant had told her he wanted to show her
a movie about positions, and that he pulled her pants and
panties off after leading her into the bedroom and * * *
lock[ing] the door behind her.” K also told Grice that defen-
dant had pulled his own pants down. When Grice asked K
whether defendant had touched her at all, K quickly said,
“No,” but Grice observed K’s body language change, so Grice
stopped the interview and spoke with K’s parents about tak-
ing K to the hospital for an examination. Grice left to set up
a sexual assault examination at the hospital, and then he
went to the police station to interview defendant.
When Grice arrived at the police station, Grice
obtained DNA samples from defendant and interviewed
defendant about what had happened earlier that day.
According to defendant, that morning, K had gone into her
parent’s bedroom for about five minutes and then K came
back out and told defendant that she wanted to show him
something in the bedroom. When defendant entered the
room, he said that K had turned on a “sex position” video
on YouTube. Defendant stated that K then took off her own
clothes, got into a sexual position, and told defendant that
“she wanted to see what [his] thing looked like when it
was close to that area.” Defendant unzipped his pants and
exposed his penis. After initially denying that he had any
sexual contact with K because J came back home, defen-
dant eventually admitted to Grice that his penis might have
touched K while he was moving her into a position, that his
penis might have “brushed against” her vagina or anus, and
674 State v. Garrett
that he might have pressed his penis up against her rec-
tum for “a little less than half a second.” Additionally, after
Grice lied to defendant about K stating that she had felt
defendant’s penis push against her anus, defendant admit-
ted that he had, in fact, pressed his penis against K’s anus.
Defendant also admitted to Grice that he had had
other interactions with K that were potentially sexual in
nature. Defendant told Grice that K came into the bath-
room while he was urinating and asked defendant questions
about his penis. Defendant stated that, on another occasion,
he had masturbated in front of K because she was curious
about the size of his penis. Defendant also stated that he
had accidentally touched K’s genital area while they were
playing and, when he apologized, K told defendant to “keep
doing that.” Ultimately, defendant admitted that he was
sexually attracted to K, and that he was “expecting to do a
couple months in jail, bare minimum, if not longer,” because
of “this whole situation.”
Grice also asked defendant about the contents of
defendant’s computer. Defendant stated that he had never
intentionally looked for child pornography on his computer,
but that “a couple of child things do sneak in” when he
“look[s] up things related to incest.”
Based on the information that Grice had gathered
during his investigation, Grice obtained, and then exe-
cuted, a search warrant at defendant’s home. Grice seized a
computer from defendant’s bedroom along with two thumb
drives that were connected to the USB ports on the computer.
Upon examination of that computer, it was discovered that
several internet searches had been done, including searches
for “[p]reteen erotic, preteen ass, slut niece, * * * preteen ass
erotic,” and “fifth grade butt.” Additionally, there were mul-
tiple images and videos of child pornography that had been
downloaded onto one of the thumb drives.
Meanwhile, K was taken to the hospital and was
examined by Partridge, a nurse trained to perform exam-
inations in child sexual abuse cases. When Partridge asked
K why she had come to the hospital, K told Partridge that it
was because of “the bad thing that happened * * * in mom’s
room” with defendant. K told Partridge that defendant had
Cite as 300 Or App 671 (2019) 675
taken off her clothes and his clothes and played a “weird”
video, and that defendant had “tried to touch her butt with
his hands and didn’t get to because Daddy came to the door.”
Partridge took swabs of K’s mouth, hands, genital area, and
perianal area. K’s physical exam revealed that all of “the
tissue was normal” and that “there was no trauma.”
K was also interviewed at the Kids First Center about
a week later by a child forensic interviewer, Satterwhite. K
told Satterwhite that defendant had put on the video about
“inappropriate positions” in her parents’ bedroom and that,
when K went to see what the noise was, defendant pulled K
into the bedroom and put K on the bed. After defendant put
K on the bed, defendant took his pants and underwear off
and took K’s pants and underwear off. K said that defendant
held her down and tried to touch her “bottom” with his hand
but, “before he could, my dad got in, and I was so happy to
see him.” K stated that she never felt defendant touch her
bottom and was “99 percent sure he didn’t touch [her].”
Defendant was charged in a 17-count indictment
with one count each of first-degree sodomy and first-degree
sexual abuse against K, and 15 counts of first-degree ECSA.
Defendant filed a demurrer to the indictment. Defen-
dant argued that the trial court should allow his demurrer
because the state had failed to allege a basis for joining the
sodomy and sexual abuse charges with the ECSA charges.
Defendant contended that he would be prejudiced by the
disallowance of the demurrer “because the jury * * * will be
hearing evidence regarding one set of crimes and a separate
set of crimes, and * * * they will not be able to consider the
facts regarding one set when they’re [considering] the other
set.” In other words, defendant contended that the joinder
of the sodomy and sexual abuse charges with the ECSA
charges would lead to the “improper presentation to the
jury of acts which, if they were tried separately, would not
be admissible in separate trials.” Furthermore, defendant
asserted that the joinder of the sodomy and sexual abuse
charges with the ECSA charges would further prejudice his
defense because “defendant would testify regarding Counts
1 and 2, [the sodomy and sexual abuse charges,] but would
not testify on Counts 3 through 17,” the ECSA charges,
676 State v. Garrett
and the jury will “wonder * * * is he just admitting guilt 3
through 17 if he doesn’t testify after he testifies to 1 and 2.”
In response, the state argued that the crimes were
properly joined as crimes that are the same or similar in
character, because “all the charges in the indictment relate
to child abuse, specifically the sexual abuse of a child.” The
state contended that the evidence from the ECSA charges
would also be admissible as other acts evidence under OEC
404, and that any prejudice that arose as a result of that evi-
dence, as well as defendant’s choice to testify only regarding
some of the charges, could be mitigated by a jury instruction.
After taking the matter under advisement, the trial
court issued a written order disallowing defendant’s demur-
rer. Accordingly, the trial court empaneled the jury, and the
case proceeded to trial.
At trial, defendant did not deny that he was naked
in the bedroom with K, that he had a sexual interest in K,
and that he touched K with a sexual purpose. Defendant’s
theory of defense was that the state could not prove the sod-
omy charge because it did not provide sufficient evidence to
show that defendant had actually engaged in “deviate sex-
ual intercourse” with K.2 Specifically, defendant pointed to
the fact that K repeatedly said that defendant never caused
K to engage in deviate sexual intercourse because J had
come back home and stopped defendant from completing the
crime. Defendant argued that he had admitted to touching
K’s anus with his penis only after Grice had subjected defen-
dant to extensive questioning, and because Grice had lied
to defendant about K stating that she had felt something
press against her anus. Accordingly, defendant argued that
2
The indictment alleges that defendant committed the crime of first-degree
sodomy in 2015. ORS 163.405(1)(b) (2015) provided that “[a] person who engages
in deviate sexual intercourse with another person or causes another to engage in
deviate sexual intercourse commits the crime of sodomy in the first degree if” the
“victim is under 12 years of age.” ORS 163.305(1) (2015) defined “deviate sexual
intercourse” as “sexual conduct between persons consisting of contact between
the sex organs of one person and the mouth or anus of another.” We note that ORS
163.405 and ORS 163.305 have since been amended, and the term “deviate sex-
ual intercourse” has been replaced by “oral or anal sexual intercourse.” Or Laws
2017, ch 318, § 2; Or Laws 2017, ch 318, § 5. The effective date of those provisions
was January 1, 2018. All of the references to ORS 163.405 and ORS 163.305
throughout this opinion are to the 2015 version of those statutes.
Cite as 300 Or App 671 (2019) 677
the jury should convict him of attempted sodomy and first-
degree sexual abuse.
With regard to the ECSA charges, defendant did
not dispute the existence of the images on his thumb drive.
Defendant contended that the state could not prove that
defendant had knowingly “duplicated” the images, and,
thus, the jury should return guilty verdicts for the lesser
included offense of second-degree ECSA based on his “pos-
session” of the images.
J, Molaski, Grice, Partridge, and Satterwhite testi-
fied about the historical facts outlined above, including what
they had observed on the day in question, and what was
discovered during the subsequent investigation. In addition,
K testified that, after defendant had pulled her into the bed-
room, defendant took off his own clothes and K’s pants, but
not her underwear, and then J walked in.
There was conflicting testimony about the results
of the DNA tests on the swabs taken from K’s perianal
area and the conclusions to be drawn from the test results.
According to the state’s expert, the swabs contained a small
number of spermatozoa cells that revealed a partial DNA
profile that was consistent with defendant’s DNA profile, but
the frequency of that DNA profile in “the Caucasian popu-
lation” was “1 out of 340.” Additionally, the state’s expert
found “non-sperm” DNA and concluded that that DNA came
from defendant or someone in the paternal male line of
defendant’s family. Defendant’s expert was unable to locate
any DNA from spermatozoa, but stated that, in any event,
“it’s only as discriminating as 1 in 340, not anything like 1
in 340 trillion * * * [s]o * * * there isn’t enough information
here * * * to identify any one particular person.” Defendant’s
expert also concluded that the nonsperm DNA could not
have belonged to defendant or anyone else in the paternal
male line of defendant’s family.
Defendant did not testify, but he presented expert
testimony about confessions and circumstances that can
affect a person’s memory to explain his admission to Grice
about sodomizing K. The jury found defendant guilty of one
count of first-degree sodomy, one count of first-degree sexual
678 State v. Garrett
abuse, two counts of first-degree ECSA, and 13 counts of
second-degree ECSA.3 Defendant appeals from the judg-
ment of conviction and assigns error to the trial court’s dis-
allowance of his demurrer.
On appeal, defendant contends that the offenses,
which are merely described in the indictment using the
words of the relevant statutes, are not, on their face, sim-
ilar in character, because sodomizing and sexually abus-
ing a named victim is different in character from duplicat-
ing images of sexually explicit conduct involving someone
else’s abuse of a different child. The state argues that “[t]he
charged offenses are ‘of the same or similar character’ for
purposes of the permissive joinder rule set forth in ORS
132.560(1)(b)(A), because they all disclose on their face that
the state was alleging that defendant committed sexual
offenses against children.” In effect, the state advocates for
a broad categorical approach to joinder under ORS 132.560
(1)(b)(A) that pays almost exclusive attention to the class or
category of the offenses. Thus, the issue we are asked to
determine is whether the indictment, on its face, was legally
sufficient to comply with the provisions of ORS 132.560
(1)(b)(A). More specifically, the first question we confront in
this case is whether the sodomy and sexual abuse offenses
are of the same or similar character as the ECSA offenses
because, as charged in this case, they are all sexual offenses
against children.
II. ANALYSIS
We review the disallowance of a demurrer for legal
error. See State v. Taylor, 364 Or 364, 375, 434 P3d 331
(2019) (whether the allegations in an indictment are suffi-
cient to satisfy the statutory test for joinder is a question of
law).
ORS 135.630(2) provides, in part, that a defendant
may demur to an indictment when it appears on the face
3
The trial court merged the two guilty verdicts for first-degree ECSA into
a single conviction for first-degree ECSA. Additionally, the trial court merged
three of the guilty verdicts for second-degree ECSA with three of the other guilty
verdicts for second-degree ECSA, which resulted in defendant being convicted of
a total of 10 counts of second-degree ECSA.
Cite as 300 Or App 671 (2019) 679
thereof “that it does not substantially conform to the require-
ments of ORS * * * 132.560.” ORS 132.560 provides, in per-
tinent part:
“(1) A charging instrument must charge but one
offense, and in one form only, except that:
“* * * * *
“(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:
“(A) Of the same or similar character[.]”
Under ORS 135.630 and ORS 132.560, the state is “required
to allege * * * the basis for the joinder * * * in the language of
the joinder statute or by alleging facts sufficient to establish
compliance with the joinder statute.” State v. Poston, 277 Or
App 137, 144-45, 370 P3d 904 (2016), adh’d to on recons, 285
Or App 750, 399 P3d 488, rev den, 361 Or 886 (2017)); see
also State v. Warren, 364 Or 105, 114, 430 P3d 1036 (2018)
(a “demurrer must be resolved on the face of the pleading”
because “the legislature intended that a trial court would be
able to determine, from the face of an indictment, whether
the indictment complies with the joinder statute”). Here,
the state did not expressly allege that the crimes were of
the “same or similar character,” and, thus, we must deter-
mine whether the factual allegations in the indictment are
“sufficient to establish compliance with the joinder statute.”
Poston, 277 Or App at 145.
A. Assessing the Propriety of Joinder of Offenses on the
Basis of the Same or Similar Character
As we observed in Poston, the “legislature amended
ORS 132.560 in 1989 to allow more liberal joinder of charges
in criminal cases” and the “bill’s legislative history shows
that it was adopted with the understanding that it was
revising ORS 132.560 to mimic Federal Rule of Criminal
Procedure 8(a).” 277 Or App at 143-44 (citing House Bill (HB)
2251 (1989); Or Laws 1989, ch 842, § 1). That 1989 amend-
ment added the “same or similar character” basis for joining
two or more offenses in the same indictment from Federal
Rule of Criminal Procedure 8(a), and “the legislators who
680 State v. Garrett
approved the amendment intended the Oregon statute to
be construed consistently with the federal rule.” Id. at 144;
see also Warren, 364 Or at 125-26 (observing that the 1989
amendment to ORS 132.560 was based on Federal Rule of
Criminal Procedure (FRCrP) 8 and apparently “imported
text from * * * FRCrP 8(a)).”4 Accordingly, we turn to federal
cases construing the “same or similar character” language
as a basis for joining multiple charges under FRCrP 8(a) for
guidance. See State v. Walker, 356 Or 4, 23-24, 333 P3d 316
(2014) (observing that when an Oregon statute is modeled
on a federal statute, federal case law predating the enact-
ment of the Oregon statute “can provide useful context for
interpreting our statute,” but “[c]ases that came later * * *
may [only] be consulted for their persuasive value”); State v.
Meyer, 109 Or App 598, 602, 820 P2d 861 (1991), rev den, 312
Or 677 (1992) (noting that, because the 1989 amendment to
the joinder statute “was adapted from [FRCrP 8(a),] * * * the
federal cases interpreting the ‘same or similar character’
language [are] persuasive”).
The federal courts of appeal have diverged some-
what in their respective approaches to the joinder of charges
on the basis of “same or similar character” under FRCrP
8(a). The Seventh Circuit has adopted a narrower categor-
ical approach, like the one proposed by the state in this
case, which focuses almost exclusively on the likeness of the
“class” or category of the offenses and does not necessar-
ily depend on temporal proximity or evidentiary similarity.
United States v. Coleman, 22 F3d 126, 133-34 (7th Cir 1994).
Thus, when “[t]he elements to be proved in each case were
the same,” the Seventh Circuit has held that that “similar-
ity supports the district court’s decision of joinder” on the
basis of same or similar character. United States v. Archer,
843 F2d 1019, 1021 (7th Cir), cert den, 488 US 837 (1988);
see Coleman, 22 F3d at 134 (concluding that “joinder under
4
FRCrP 8(a) (1989) provided:
“Two or more offenses may be charged in the same indictment or infor-
mation in a separate count for each offense if the offenses charged, whether
felonies or misdemeanors or both, are of the same or similar character or are
based on the same act or transaction or on two or more acts or transactions
connected together or constituting parts of a common scheme or plan.”
(Emphasis added.)
Cite as 300 Or App 671 (2019) 681
Rule 8(a) was appropriate because Coleman was charged
with four counts of possession of a firearm, identical 922
(g)(1) offenses which could only vary in time and location
but not in their essential elements”).5
On the other hand, the First and Ninth Circuits
apply what has been “characterized as a broader, more
holistic approach that looks to a variety of factors, including
temporal proximity and potential for evidentiary overlap.”
United States v. Jawara, 474 F3d 565, 576 (9th Cir 2007).
For example, the First Circuit conducts a more comprehen-
sive review of the allegations in the indictment by “consid-
er[ing] such factors as whether the charges are laid under
the same statute, whether they involve similar victims, loca-
tions, or modes of operation, * * * the time frame in which
the charged conduct occurred,” and whether “[w]itnesses
and testimony would also overlap.” United States v. Edgar,
82 F3d 499, 503 (1st Cir), cert den, 519 US 870 (1996) (inter-
nal quotation marks omitted). The Ninth Circuit has stated:
“We consider it appropriate to consider factors such
as the elements of the statutory offenses, the temporal
proximity of the acts, the likelihood and extent of eviden-
tiary overlap, the physical location of the acts, the modus
operandi of the crimes, and the identity of the victims in
assessing whether an indictment meets the ‘same or simi-
lar character’ prong of Rule 8(a). The weight given to a par-
ticular factor will depend on the specific context of the case
and the allegations in the indictment. But the bottom line
is that the similar character of the joined offenses should
be ascertainable—either readily apparent or reasonably
inferred—from the face of the indictment. Courts should
not have to engage in inferential gymnastics or resort to
implausible levels of abstraction to divine similarity. Thus,
where the government seeks joinder of counts on the basis
5
The Seventh Circuit has, however, also considered factors such as temporal
proximity and evidentiary overlap. See United States v. Hubbard, 61 F3d 1261,
1270-71 (7th Cir 1995), cert den, 516 US 1175 (1996) (concluding that weapons
and narcotics charges were not of the same or similar character because the fire-
arms were discovered “more than seventeen months after the May 1991 narcotics
transaction,” the “indictment itself offer[ed] nothing more from which one might
possibly infer a connection between the two criminal acts,” and, although the
location of the firearms and cocaine was the same, the evidentiary overlap was
“extremely slight”).
682 State v. Garrett
of ‘same or similar character,’ it crafts a barebones indict-
ment at its own risk.”
Jawara, 474 F3d at 578.6
We conclude that the analysis undertaken by
Oregon’s courts more closely corresponds with the First and
Ninth Circuits that conduct a “comprehensive review” of the
allegations in the indictment, and which takes into consid-
eration a variety of factors, including the potential for evi-
dentiary overlap and temporal proximity. Id.For example, in Taylor, the Supreme Court con-
cluded that multiple robbery offenses that arose out of two
separate bank robberies were properly joined “on the basis
of their ‘similar character’ ” under ORS 132.560, because
the victims and evidence were similar, “[m]ost of the alleged
facts [we]re elements of the offense of third-degree robbery
* * * with one additional circumstance,” and “the indictment
allege[d] that, on two different dates, defendant committed
similar acts, in the same county, with the same intent, and
under the same circumstance of, at a minimum, represent-
ing that he was armed with a firearm.” 364 Or at 374-77, 377
n 5. The court noted, however, that “not * * * all crimes of
robbery are, necessarily, of the same or similar character.”
Id. at 377 n 7.
We have also applied a similar approach that con-
siders the specific factual allegations in the indictment
6
As the Ninth Circuit observed, “[s]ome other circuits are less easily cate-
gorized,” but they also consider factors such as “temporal proximity” and “the
extent of evidentiary overlap.” Jawara, 474 F3d at 576 n 7 (citing United States
v. Holloway, 1 F3d 307, 310-11 (5th Cir 1993) (concluding that felon in posses-
sion of a firearm and robbery charges were not of the same or similar character
when “there was no allegation that * * * the weapon was in any way connected
to the charged robberies or any robbery” and the gun was found in Holloway’s
possession “almost two months after the most recent robbery,” because joinder
would “get before the jury evidence that likely would be otherwise inadmissible,
i.e., that Holloway was a convicted felon and that he had a weapon on his person
when he was arrested”); United States v. Werner, 620 F2d 922 (2nd Cir 1980)
(in assessing whether charges are of the same or similar character, the Second
Circuit also looks to whether “the testimony at the trial for each offense would
very likely have included evidence of the other”); United States v. Halper, 590 F2d
422, 431 (2nd Cir 1978) (“[J]oinder of offenses under the Rule 8(a) rubric of ‘same
or similar character’ has been upheld where evidence of the one offense would be
admissible in a separate trial on the other offense as evidence of ‘other crimes,
wrongs, or acts.’ ”)).
Cite as 300 Or App 671 (2019) 683
and a multitude of factors when assessing the propriety of
joinder on the basis of “same or similar character” under
ORS 132.560. Recently, in State v. Buyes, we concluded
that the charged offenses of first-degree sodomy and first-
degree sexual abuse were of the same or similar character
when the charges arose from the abuse of the defendant’s
nephews, because “his offenses were based on the patently
‘similar conduct’ of targeting his young, male family mem-
bers for sexual purposes” and “the fact that defendant’s
charged offenses were separated by a number of years d[id]
not negate the ‘same or similar character’ of defendant’s
conduct concerning both victims.” 280 Or App 564, 568-69,
382 P3d 562 (2016). See, e.g., State v. Miller, 287 Or App 135,
148-49, 401 P3d 229 (2017) (concluding that it was apparent
from the face of the indictment that charges of attempted
murder, first-degree attempted assault, and unlawful use
of a weapon were of the same or similar character because
the charges all involved the “defendant’s unlawful use of a
firearm, on the same day, in the same county, and against
the same victim”); State v. Parker, 119 Or App 105, 108-09,
849 P2d 1157, rev den, 317 Or 584 (1993) (charges of sexual
abuse against three different children, who were 9, 10, and
11 years old, were of the same or similar character where
“all of the abuse allegedly occurred at defendant’s farm
where they had visited him for picnics and gatherings” and
“the evidence of defendant’s * * * conduct with each child
would be admissible in each of the separate trials”); State
v. Rood, 118 Or App 480, 482-83, 848 P2d 128, rev den, 317
Or 272 (1993) (concluding that charges of second-degree
sodomy, first-degree sexual abuse, and endangering the
welfare of a minor were properly joined on the basis of their
similar character because “[a]ll three indictments charged
defendant with sexual conduct with male children he had
brought to his home for purposes of adoption”).
Accordingly, we eschew the state’s categorical approach,
in which all sexual crimes against children would be of the
same or similar character on the basis of that broad classifi-
cation alone, in favor of a more thorough review that focuses
on the particular allegations in the indictment. See Taylor,
364 Or at 375 (“[B]ecause determining proper joinder ulti-
mately requires the court to look beyond a bare allegation
684 State v. Garrett
in the words of the joinder statute, alleging the factual basis
for joinder may better serve the purposes” of “eliminat[ing]
the need for a defendant to guess the state’s basis for joinder
and to make it possible for the trial court to determine, from
the face of the indictment, whether the indictment com-
plies with the joinder statute.” (Internal quotation marks
omitted.)).
In summary, to determine whether charges are of
“the same or similar character” under ORS 132.560(1)(b)(A),
we 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. The weight given
to any one factor will necessarily depend on the particular
allegations in the indictment.
B. Are the sodomy and sexual abuse charges of the same or
similar character as the ECSA charges?
Here, the indictment alleged that defendant com-
mitted first-degree sodomy (Count 1) and first-degree sex-
ual abuse (Count 2) as follows:
“COUNT 1 [FIRST-DEGREE SODOMY]
“The defendant, on or about April 26, 2015, in Lane
County, Oregon, did unlawfully and knowingly engage in
deviate sexual intercourse with [K], a child under twelve
years of age;
“COUNT 2 [FIRST-DEGREE SEXUAL ABUSE]
“The defendant, on or about April 26, 2015, in Lane
County, Oregon, did unlawfully and knowingly subject [K,]
a person under the age of 14 years, to sexual contact[.]”
Additionally, with regard to the first-degree ECSA charges,
Counts 3 through 17 alleged, in pertinent part:
“The defendant, on or about November 17, 2014, in
Lane County, Oregon, did unlawfully and knowingly dupli-
cate a photograph of sexually explicit conduct involving a
child * * * while knowing or being aware of and consciously
Cite as 300 Or App 671 (2019) 685
disregarding the fact that creation of the visual recording
of sexually explicit conduct involved child abuse.” 7
We conclude that the indictment fails to meet the
requirements for joinder under ORS 135.630 and ORS
132.560, because the indictment does not sufficiently allege
the basis for joining the sodomy and sexual abuse offenses
with the ECSA offenses, either in the language of the join-
der statute, or by alleging facts sufficient to demonstrate
compliance with the joinder statute.8
1. Elements of the offenses
As we explain below, the indictment alleges three
kinds of statutory violations requiring proof of different
elements.
With regard to first-degree sodomy, ORS 163.405
(1)(b) (2015) provided that “[a] person who engages in deviate
sexual intercourse with another person or causes another to
engage in deviate sexual intercourse commits the crime of
sodomy in the first degree if” the “victim is under 12 years
of age.” ORS 163.305(1) (2015) defined “deviate sexual inter-
course” as “sexual conduct between persons consisting of
contact between the sex organs of one person and the mouth
or anus of another.” Here, the indictment alleged the ele-
ments in the words of the statutory offense: (1) defendant
“knowingly;” (2) “engage[d] in deviate sexual intercourse;”
(3) “with [K], a child under twelve years of age.” See State v.
Delaney, 160 Or App 559, 567, 984 P2d 282, rev den, 329 Or
358 (1999) (the “precise nature of the deviate sexual inter-
course is not an element of” first-degree sodomy).
With regard to first-degree sexual abuse, ORS
163.427(1)(a)(A) provides that “[a] person commits the crime
of sexual abuse in the first degree when” that person
7
All of the ECSA charges except Count 9 were alleged to have occurred on
November 17, 2014. Count 9 alleged that defendant committed the crime of first-
degree ECSA on April 17, 2014.
8
We note that the hearing on defendant’s demurrer occurred on February 2,
2016, and that the trial court disallowed defendant’s demurrer on February 12,
2016. As such, the trial court did not have the benefit of our decision in Poston,
277 Or App 137, which issued on March 30, 2016, or the numerous decisions that
have applied and refined Poston’s demurrer analysis, and the Supreme Court’s
recent decisions in Warren and Taylor.
686 State v. Garrett
“[s]ubjects another person to sexual contact” and “[t]he vic-
tim is less than 14 years of age.” ORS 163.305(6) defines
“sexual contact” as “any touching of the sexual or other inti-
mate parts of a person or causing such person to touch the
sexual or other intimate parts of the actor for the purpose
of arousing or gratifying the sexual desire of either party.”
The indictment alleged: (1) defendant “knowingly;” (2) “sub-
ject[ed];” (3) “[K,] a person under the age of 14 years, to sex-
ual contact.”
Hence, the sodomy and sexual abuse counts share
some similar elements because they both allege that defen-
dant knowingly engaged in some form of sexual contact
with the same child, on the same date, in the same county.
However, as we have observed, sexual abuse does not
have the same elements as sodomy because “sexual abuse
requires touching for the purpose of arousing or gratifying
the sexual desire of either party,” whereas “[t]he offense of
sodomy requires deviate sexual intercourse and does not
require proof of arousal or gratification of the sexual desire
of either party.” State v. Moore, 185 Or App 229, 230, 58 P3d
847 (2002).9
With regard to first-degree ECSA, under ORS
163.684(1), a person commits first-degree [ECSA] if the per-
son “[k]nowingly * * * duplicates * * * a visual recording of
sexually explicit conduct involving a child” and “[k]nows or
is aware of and consciously disregards the fact that creation
of the visual recording of sexually explicit conduct involved
child abuse.” A visual recording “includes, but is not lim-
ited to, photographs, films, videotapes and computer and
other digital pictures, regardless of the manner in which the
recording is stored.” ORS 163.665(5). Additionally, “sexually
explicit conduct” is defined as “actual or simulated” “[s]exual
intercourse or deviant sexual intercourse,” “[g]enital-genital,
oral-genital, anal-genital or oral-anal contact,” “[p]enetra-
tion of the vagina or rectum by any object,” “[m]asturba-
tion,” “[s]adistic or masochistic abuse,” or “[l]ewd exhibition
of sexual or other intimate parts.” ORS 163.665(3). Finally,
9
On appeal, defendant does not contend that the sodomy and sexual abuse
charges were improperly joined.
Cite as 300 Or App 671 (2019) 687
a “child” is defined as “a person who is less than 18 years of
age.” ORS 163.665(1). Here, the indictment alleged: (1) defen-
dant “knowingly;” (2) “duplicate[d];” (3) “a photograph of sex-
ually explicit conduct involving a child;” (4) while “knowing
or being aware of and consciously disregarding the fact that
creation of the visual recording of sexually explicit conduct
involved child abuse.”
First-degree ECSA, like first-degree sodomy, does
not require proof of touching for the purpose of arousing or
gratifying the sexual desire of either party. Additionally,
first-degree ECSA does not require proof of any sexual
contact between the defendant and a victim whatsoever.
Furthermore, the conduct does not need to have actually
occurred to prove first-degree ECSA because the conduct
can be “simulated.” See State v. Stoneman, 323 Or 536,
540, 920 P2d 535 (1996) (the “child’s participation in the
act must be real, i.e., the sexual act may be ‘simulated,’ but
the child’s participation in that act cannot be” (emphasis
in original)). Finally, although the sexually explicit con-
duct underlying the first-degree ECSA charges can be the
same as, or similar to, the conduct underlying charges of
first-degree sodomy and sexual abuse, it also includes a
wide array of other sexually explicit conduct, some of which
does not involve touching a child at all. See ORS 163.665(3)
(defining “sexually explicit conduct” to include “[m]astur-
bation,” and “[l]ewd exhibition of sexual or other intimate
parts”).
Here, it is not apparent from the face of the indict-
ment what type of sexual acts were perpetrated against the
child victims of the ECSA charges.10 The only similarity
between the elements of the ECSA charges and the sodomy
and sexual abuse charges that is discernable from the face
of the indictment is that the crimes have a similar theme of
sexual exploitation of children who were less than 18 years
of age. Under those circumstances, such a general theme,
alone, does not allow joinder. Cf. Taylor, 364 Or at 377 n 7
(noting that “not * * * all crimes of robbery are, necessarily,
of the same or similar character”).
10
Defendant does not dispute that the ECSA charges were properly joined
with each other.
688 State v. Garrett
2. Temporal proximity and location
The conduct underlying the ECSA charges was
alleged to have occurred on or about April 17, 2014, and
November 17, 2014, and the conduct underlying the sodomy
and sexual abuse charges allegedly occurred on or about
April 26, 2015. As such, the conduct depicted in the sexu-
ally explicit photographs that defendant duplicated could
not have involved the charged sexual offenses against K,
because the duplication occurred months before defendant
allegedly sodomized and sexually abused K. Furthermore,
because the alleged acts in the two sets of charges occurred
several months apart and do not necessarily involve the
same or similar acts perpetrated against the child victims,
the similar, but general, location of the alleged acts, Lane
County, does not assist us a great deal in our analysis. Under
the circumstances here, we conclude that the temporal prox-
imity and location factors do not favor joinder. Cf. Miller, 287
Or App at 148-49, (concluding that it was apparent from
the face of the indictment that charges of attempted mur-
der, first-degree attempted assault, and unlawful use of a
weapon were of the same or similar character because the
charges all alleged the “defendant’s unlawful use of a fire-
arm, on the same day, in the same county, and against the
same victim”); Meyer, 109 Or App at 603 (defendant’s five
traffic offenses, which took place over the span of six years,
were properly joined on the basis of their similar charac-
ter under ORS 132.560(1)(b)(A) because the crimes were
“all major traffic crimes occurring in the same county and
involving defendant’s driving”).
3. Same or similar victims and mode of operation
As noted above, the indictment does not demon-
strate that the specific victim of the sodomy and sexual abuse
charges, K, is the same child victim that was depicted in the
computer files that formed the basis of the ECSA charges.
Additionally, the indictment reveals only that K was under
12 years old when the alleged sodomy and sexual abuse
offenses occurred, but none of the ECSA charges disclose
anything about the ages or sex of the children, other than
Counts 16 and 17, which specify the file name as “Kristina—
8yo Model.” Thus, the indictment does demonstrate that
Cite as 300 Or App 671 (2019) 689
there are at least two similar victims involved—two girls
under the age of 12. However, the 13 other ECSA counts
do not disclose the ages or the sex of the children, and a
“child” for purposes of first-degree ECSA is defined as “a
person who is less than 18 years of age.” ORS 163.665(1).
Additionally, as discussed above, the ECSA charges do not
require the state to prove that defendant subjected a child
to sexual abuse at all, and the indictment does not disclose
what type of “sexually explicit conduct” the children were
subjected to for purposes of the ECSA charges. Accordingly,
the indictment does not demonstrate that defendant had
a distinct pattern or method of abusing child victims of a
same or similar age or sex.
Because the two sets of charges do not require proof
of overlapping elements and do not stem from common events,
and because the indictment does not disclose the same or
similar modus operandi, the general similarity of the age
and sex of two of the victims does not demonstrate the same
or similar pattern of conduct by defendant that would sup-
port the joinder of all of the ECSA charges with the sod-
omy and sexual abuse charges. Cf. Taylor, 364 Or at 376-77
(the factual allegations in the indictment demonstrated that
the defendant’s robbery charges were of the same or similar
character, because all of the charges involved the defendant
robbing several victims at two Siuslaw Banks while, at a
minimum, representing that he was armed with a firearm);
Buyes, 280 Or App at 568-69 (concluding that offenses of
first-degree sodomy and first-degree sexual abuse were of
the same or similar character when the charges arose from
the abuse of the defendant’s nephews, because “his offenses
were based on the patently ‘similar conduct’ of targeting his
young, male family members for sexual purposes”).
4. Evidentiary overlap
As for potential evidentiary overlap, the only named
victim, K, whose centrality to the sodomy and sexual abuse
charges is evident from the face of the indictment, is not
included in the ECSA charges. Additionally, for the reasons
outlined above, the lack of temporal proximity of the crimes
and the lack of overlapping elements does not suggest that
there is a significant potential for evidentiary overlap. That
690 State v. Garrett
is, it does not appear on the face of the indictment that proof
of the ECSA charges depends on the evidence needed to
prove the sodomy and sexual abuse charges. And, as we dis-
cuss in more detail below, although some of the information
about the sexually explicit photographs might be relevant to
prove that defendant had a sexual purpose when he commit-
ted the crime of first-degree sexual abuse, it does not appear
from the face of the indictment that proof of the sodomy and
sexual abuse charges depends on the evidence underlying
the ECSA charges. Therefore, the evidentiary overlap does
not appear to be significant on the face of the indictment.
5. Conclusion
The only similarity that can be gleaned from this
indictment is that all of the charges involve sexual offenses
against children. For the reasons discussed above, such a
general theme, alone, does not make those offenses, on the
face of this indictment, of the “same or similar character.”
In short, when the state chooses to allege multiple
crimes by using the wording of different statutory offenses,
does not use the joinder language of ORS 132.560(1)(b)(A),
and does not use some language specifying the crimes’
similarities, it crafts a perfunctory indictment at its own
peril. See Taylor, 364 Or at 375 (stating that “alleging the
factual basis for joinder may better serve the purposes” of
“eliminat[ing] the need for a defendant to guess the state’s
basis for joinder and to make it possible for the trial court
to determine, from the face of the indictment, whether the
indictment complies with the joinder statute” (internal quo-
tation marks omitted)).
The trial court erred when it concluded that the
sodomy and sexual abuse charges were of the same or simi-
lar character as the ECSA charges, because the indictment
fails to comply with ORS 132.560.
C. Harmless Error
That conclusion, however, does not complete our
analysis. We must determine whether the trial court’s erro-
neous disallowance of the demurrer affected defendant’s
substantial rights, and, therefore, was not harmless. See
Cite as 300 Or App 671 (2019) 691
Warren, 364 Or at 128-33 (discussing whether the erroneous
disallowance of a demurrer is harmless under former ORS
138.230 (2015), repealed by Or Laws 2017, ch 529, § 26).11
As we stated in Poston, 277 Or App at 145, “whether
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 [erroneous] joinder * * *
and, if so, whether the evidence affected the verdict on those
charges.” However, in Warren, the Supreme Court clari-
fied that a “harmless-error test [that] is limited to whether
unfairly prejudicial evidence was admitted * * * is incom-
plete.” 364 Or at 132. The court explained:
“[I]mproper joinder can prejudice a defendant in several
[other] ways, including if the defendant would testify
regarding some charges but not others, if the defendant’s
defenses to the charges could be viewed as inconsistent, if
the evidence of one charge might improperly influence the
jury’s verdicts on other charges, or if the evidence could
confuse the jury.”
Id. at 133.
1. Sodomy and sexual abuse charges
We begin with whether the “evidence presented at
a trial on the erroneously joined [ECSA] charges would be
‘admissible,’ as we used that term in Poston,” in a trial in
which defendant was charged only with first-degree sexual
abuse and first-degree sodomy. State v. Clardy, 286 Or App
745, 772-73, 401 P3d 1188, adh’d to as modified on recons,
11
Former ORS 138.230 (2015) provided, “After hearing the appeal, the court
shall give judgment, without regard * * * to technical errors, defects or exceptions
which do not affect the substantial rights of the parties.” “It was replaced by ORS
138.257, which references Article VII (Amended), section 3, and uses the harm-
less error standard for that provision, as articulated in [State v.] Davis[, 336 Or
19, 77 P3d 1111 (2003)]. Or Laws 2017, ch 529, § 15.” Warren, 364 Or at 128 n 11.
ORS 138.257(2) provides, “Subject to Article VII (Amended), section 3, Oregon
Constitution, the appellate court shall not reverse, modify or vacate a trial court
judgment or order if there is little likelihood that any error affected the outcome.”
ORS 138.257 applies on appeal from a judgment entered by the trial court on or
after January 1, 2018. Or Laws 2017, ch 529, § 28. The judgment that is being
appealed in this case was entered before January 1, 2018. Therefore, as the court
did in Warren, we apply former ORS 138.230 (2015) in conducting our harmless
error analysis.
692 State v. Garrett
288 Or App 163, 406 P3d 219 (2017), rev den, 364 Or 680(2019). As we explained in Clardy, 286 Or App at 772-73:
“[E]vidence presented at a trial on erroneously joined
charges would be ‘admissible,’ as we used that term in
Poston, in a hypothetical trial on each charge or properly
joined group of charges, only when (1) each item of evidence
that was actually presented could have been admitted in
the hypothetical trial under a legally correct evidentiary
analysis and (2) it is implausible that, had the defen-
dant objected under OEC 403 or raised some other objec-
tion invoking the trial court’s discretion, the trial court
would have excluded that evidence in the hypothetical
trial.”
Here, with regard to the charge of first-degree sex-
ual abuse, the state was required to prove that defendant
acted with a sexual desire that was aroused or gratified by
sexual contact with K. See ORS 163.427(1)(a) (first-degree
sexual abuse requires proof that a defendant subjected the
victim, a person under the age of 14, to “sexual contact”);
ORS 163.305(6) (defining “sexual contact” as “any touch-
ing of the sexual or intimate parts * * * for the purpose of
arousing or gratifying the sexual desire of either party”).
Under the Supreme Court’s evidentiary analysis in State v.
Williams, 357 Or 1, 346 P3d 455 (2015), the evidence under-
lying the ECSA charges could be relevant in a trial in which
defendant was charged with first-degree sexual abuse to
prove that defendant acted with a sexual desire that was
aroused or gratified by sexual contact with K. However, as
explained below, other acts evidence remains subject to bal-
ancing under OEC 403, and we must determine whether “it
is implausible that, had the defendant objected under OEC
403 or raised some other objection invoking the trial court’s
discretion, the trial court would have excluded that evidence
in the hypothetical trial.” Clardy, 286 Or App at 772-73
(emphasis added).
For the reasons that follow, we do not think that it
is implausible that a trial court would exercise its discretion
to exclude the evidence underlying the ECSA charges in a
trial in which defendant was charged with first-degree sex-
ual abuse and first-degree sodomy under OEC 403.
Cite as 300 Or App 671 (2019) 693
In Williams, the court observed that, in sexual
abuse cases, “there is a slim but distinct difference in using”
other acts evidence “to establish [a] defendant’s character
and propensity to act accordingly, and offering that evidence
to establish [a] defendant’s sexual purpose.” 357 Or at 23.
Additionally, the court recognized the “historical concern for
the prejudice that such evidence poses and the importance
that balancing plays in protecting against the harm that
may result from its admission.” Id. at 18 (citing Old Chief v.
United States, 519 US 172, 180, 117 S Ct 644, 136 L Ed 2d 574(1997) (“The term ‘unfair prejudice,’ as to a criminal defen-
dant, speaks to the capacity of some concededly relevant evi-
dence to lure the factfinder into declaring guilt on a ground
different from proof specific to the offense charged.”)). As
such, the court concluded that even if the other acts evidence
is logically relevant, its admission “depends on whether the
risk of unfair prejudice outweighs the probative value of the
evidence under OEC 403,” and that “[t]hat determination
must be made on a case-by-case basis.” Id. at 20.
In light of the evidence and arguments in this
case, a trial court could conclude that the state had a lim-
ited need for the evidence underlying the ECSA charges in
a hypothetical trial for sexual abuse and sodomy. Here, the
state had evidence of defendant admitting to Grice that he
was sexually attracted to K, and defendant did not deny
that he was sexually attracted to K or that he was caught
in a sexual situation with K. Defendant also admitted to
Grice that he had masturbated in front of K and that he
had other interactions with K that were sexual in nature,
which included touching K’s genitals. Furthermore, the
state presented evidence that J caught defendant with
his pants down and K partially naked on J’s bed, strongly
suggesting that defendant was acting with a sexual pur-
pose when he was in the bedroom with K. As discussed,
defendant’s theory of defense was to admit to sexually
abusing K but argue that he only attempted to commit sod-
omy. Given the evidence of defendant’s sexual attraction
to K specifically, and that defendant’s theory of defense
included admitting to the charge of sexual abuse, the cen-
tral issue reduced to whether defendant completed the act
of sodomy, and, thus, the state would have little need to
694 State v. Garrett
show that defendant was sexually aroused or gratified by
sexual contact with children generally by introducing the
evidence underlying the ECSA charges. See Moore, 185 Or
App at 230 (noting that “sexual abuse requires touching for
the purpose of arousing or gratifying the sexual desire of
either party,” whereas “[t]he offense of sodomy * * * does not
require proof of arousal or gratification of the sexual desire
of either party”).
Under those circumstances, a trial court could con-
clude that the state’s need for the evidence underlying the
ECSA charges to prove defendant’s sexual purpose for the
charge of first-degree sexual abuse was relatively low and
was substantially outweighed by the potential for “unfair
prejudice, confusion of the issues, or misleading the jury, or
by considerations of undue delay or needless presentation
of cumulative evidence,” because the ECSA evidence has
the potential to be used for the improper purpose of proving
that defendant completed the charged crime of first-degree
sodomy. OEC 403. See also Warren, 364 Or at 133 (a defen-
dant can be prejudiced by improper joinder “if the evidence
of one charge might improperly influence the jury’s verdicts
on other charges, or if the evidence could confuse the jury”);
Clardy, 286 Or App at 772 (observing that the probative
value of evidence might be relatively low in light of other
available evidence on the same issue, and that the risk of
unfair prejudice could be comparatively high under those
circumstances). In other words, we cannot conclude that it
is “implausible” that the trial court would have excluded
the ECSA evidence under OEC 403 in a hypothetical trial
for sexual abuse and sodomy. Clardy, 286 Or App at 772-73;
see also State v. Keith, 294 Or App 265, 272-73, 431 P3d 94
(2018), adh’d to as modified on recons, 299 Or App 355, 450
P3d 1034 (2019) (“Although some theories of relevance might
be conceptualized, we cannot conclude that such evidence
would be admitted given the probative value in comparison
to the risk of unfair prejudice.”).
As the court explained in Warren, we must also
take into consideration whether defendant was prejudiced in
other ways, including if defendant’s defenses to the sodomy
and sexual abuse charges could be viewed as inconsistent
Cite as 300 Or App 671 (2019) 695
with defendant’s defense on the ECSA charges, and if defen-
dant would have testified regarding the sodomy and sexual
abuse charges, but not the ECSA charges. Warren, 364 Or at
133.
In this case, defendant wished to testify regarding
the sodomy and sexual abuse charges, but he did not want
to testify and be subjected to cross-examination regarding
the ECSA charges. See, e.g., State v. Cox, 337 Or 477, 491-
92, 98 P3d 1103 (2004) (“A criminal defendant has both a
statutory and a constitutional right to testify in his or her
own defense * * * [that] is subject to the state’s right to cross-
examine him or her.”). With regard to defendant’s theory of
defense to the ECSA charges, defendant did not dispute the
existence of the images on his thumb drive. Defendant con-
tended that the state could not present sufficient evidence
to prove that defendant had knowingly “duplicated” the
images, and, thus, the jury should return guilty verdicts for
the lesser-included offense of second-degree ECSA based on
his knowing “possession” of the images.
On the other hand, defendant’s theory of defense to
the sodomy and sexual abuse charges was that he did not
complete the act of sodomy. Defendant relied on K’s repeated
statements and K’s testimony that defendant never com-
mitted sodomy because J had interrupted defendant before
he could complete the act. Additionally, defendant argued
that his admission to Grice that he had pressed his penis
against K’s anus was the result of the lengthy interrogation
and Grice’s lie to defendant about K stating that K had felt
defendant’s penis push against her anus. However, defen-
dant chose not to testify following the improper joinder of the
charges due to his theory of defense for the ECSA charges,
which did not include defendant testifying. Instead of tes-
tifying to refute his admission to Grice, which went to the
heart of the sodomy and sexual abuse charges, defendant
presented expert testimony about confessions and circum-
stances that can affect a person’s memory. In that way too,
defendant was prejudiced by the improper joinder, because
the joint trial affected his defense in one of the ways that
the court identified in Warren. See also Keith, 299 Or App at
359-60 (on reconsideration, concluding that the defendant
696 State v. Garrett
suffered additional harm from the erroneous disallowance
of a demurrer where the defendant had argued two ways
that “his trial strategy would change if the counts were
properly severed,” viz., that the defendant “would challenge
the admissibility of evidence that would not be subject to
challenge in a trial of all the charges,” and that the “defen-
dant would choose to exercise his right to testify differently
in separate trials”).
Finally, because the joint trial affected his defense
in one of the ways that the court identified in Warren, and
because the ECSA evidence had the potential to be used for
the improper purpose of establishing that defendant com-
pleted the act of sodomy against K, we cannot conclude that
that evidence would not have affected defendant’s substan-
tial rights in a trial in which defendant was charged only
with sodomizing and sexually abusing K. Given the evi-
dence and defendant’s theory of defense in this case, it is
not the type of evidence that “might be so benign that its
admission has little likelihood of affecting the verdict on
the [sodomy and sexual abuse] * * * charges.” Clardy, 286 Or
App at 773 n 8. See State v. Walsh, 288 Or App 331, 336-37,
406 P3d 152 (2017), rev den, 364 Or 680 (2019) (recognizing
that “[i]n making that assessment, * * * by relying on multi-
tiered assumptions about hypothetical trials, we encounter
increasing difficulty in determining the likely effect of evi-
dence and, accordingly, in concluding whether, as a matter
of law,” that the error was harmless). Therefore, based on
the record in this case, we conclude that the erroneous disal-
lowance of defendant’s demurrer affected defendant’s “sub-
stantial rights,” as required for reversal of his first-degree
sodomy and sexual abuse convictions under former ORS
138.230 (2015).
2. ECSA charges
We now turn to whether the error was prejudicial
with respect to the ECSA charges. We begin by consider-
ing whether the evidence presented at trial for the sodomy
and sexual abuse charges would have been admissible in a
hypothetical trial in which defendant was only charged with
ECSA.
Cite as 300 Or App 671 (2019) 697
Without any facts demonstrating that defendant’s
act of sodomizing and sexually abusing K was related to his
duplication of child pornography several months earlier, we
think it highly unlikely that the evidence of defendant sod-
omizing and sexually abusing K would have been admissi-
ble in a trial for duplicating child pornography. Additionally,
the evidence related to defendant sodomizing and sexually
abusing K would have invited the jury to convict the defen-
dant of duplicating child pornography because he is a per-
son with a propensity to sexually abuse children, and it
might have distracted the jury from the central question of
whether defendant committed the charged crime of ECSA.
See Williams, 357 Or at 20 (other acts evidence that goes only
to the character of the accused “generally will have little
or no cognizable probative value, and the risk that the jury
may conclude improperly that the defendant had acted in
accordance with [other] acts on the occasion of the charged
crime will be substantial”). Nor can we conclude that there
is little likelihood that that evidence would have affected
the verdict given the lack of probative value in comparison
to the substantial risk of unfair prejudice. Accordingly, we
conclude that the erroneous disallowance of the demurrer
affected defendant’s “substantial rights” with respect to the
ECSA charges, as required for reversal under former ORS
138.230 (2015).
III. CONCLUSION
The trial court erred when it disallowed defendant’s
demurrer and the disallowance of the demurrer was not
harmless.
Reversed and remanded for entry of judgment
allowing defendant’s demurrer.