State v. Gialloreto ( 2019 )

585
Argued and submitted February 15, 2018, reversed and remanded
December 26, 2019
STATE OF OREGON,
Plaintiff-Respondent,
v.
JAMES EDWARD GIALLORETO,
Defendant-Appellant.
Washington County Circuit Court
C151728CR; A162216
457 P3d 1105
Defendant appeals a judgment of conviction for 11 offenses. Defendant
argues that the trial court erred when it denied his demurrer to the indictment,
which was premised on the indictment’s failure to allege a sufficient basis for
joinder. Specifically, he argues that the indictment’s allegations of public inde-
cency were not of the same or similar character as the indictment’s allegations
of rape and related charges, as required by the applicable joinder standard. The
state responds that the charges were of the same or similar character because all
of the charges in the indictment were sexual offenses. Held: The trial court erred.
Applying the standard recently announced by the Court of Appeals in State v.
Garrett, 300 Or App 671, 455 P3d 979 (2019), the public-indecency allegations of
the indictment were not of the same or similar character as the balance of the
charges. Additionally, the error was not harmless.
Reversed and remanded.
Eric Butterfield, Judge.
Jesse Merrithew 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.
Reversed and remanded.
______________
* DeVore, J., vice Hadlock, J. pro tempore.
586 State v. Gialloreto
DEHOOG, P. J.
This appeal presents our first opportunity to apply
our recent decision in State v. Garrett, 300 Or App 671, 455
P3d 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 assign-
ments 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 sin-
gle trial.1 The indictment neither expressly alleges a stat-
utory basis for joinder nor contains allegations of fact suf-
ficient 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 demur-
rer. 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, threat-
ened her with a knife, choked her with a ligature, and then
1
Defendant also argues under the first assignment of error that the trial
court erred in denying his related motion to sever. Our decision regarding defen-
dant’s demurrer obviates further consideration of that argument.
Cite as 301 Or App 585 (2019) 587
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 neigh-
bors also testified that she had heard him masturbating.
The indictment alleged that six of the first seven
counts—those alleging rape, robbery, assault, strangula-
tion, 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 join-
ing 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 P3d 504
(2019). In his opening brief, defendant argued—based on
2
Although the burglary count did not allege a named victim, it too alleged
that the offense had occurred on or about June 10, 2015, and further alleged that
defendant had “unlawfully and knowingly enter[ed] or remain[ed] in a dwelling
with the intent to commit the crime of rape therein.” The rape charge, in turn,
identified the alleged victim by name, as did the remainder of the first seven
counts.
588 State v. Gialloreto
our decision in State v. Poston, 277 Or App 137, 370 P3d 904
(2016) (Poston I), adh’d to on recons, 285 Or App 750, 399
P3d 488, rev den, 361 Or 886 (2017)—that the trial court
had erred in disallowing his demurrer, because the indict-
ment in his case did not comply with the joinder require-
ments 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 P3d 1036 (2018), and
State v. Taylor, 364 Or 364, 434 P3d 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. 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, defen-
dant’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(discussing our decision in Poston I); ORS 135.630(2) (autho-
rizing 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 lan-
guage of the joinder statute [ORS 132.560(1)(b)] or by alleg-
ing facts sufficient to establish compliance with the joinder
statute.’ ” Taylor, 364 Or at 375 (quoting Warren, 364 Or at
3
As he did in the trial court, defendant limits his argument to whether
Counts 8 through 11 were properly joined with the other counts; defendant has
never contended that Counts 1 through 7 were improperly joined, and we express
no opinion on that matter in this case.
Cite as 301 Or App 585 (2019) 589
109, and adopting the analysis set forth in Poston I). If the
state chooses to rely on factual allegations to establish join-
der, the indictment should “allow the defendant to under-
stand the state’s basis for joining the offenses and allow the
court to determine whether that joinder is proper.” Taylor,
364 Or at 375. 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 “can-
not consider facts other than those alleged in the charging
instrument.” Warren, 364 Or at 113 (citing State v. Pinnell,
319 Or 438, 444, 877 P2d 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 indict-
ment’s factual allegations are sufficient to demonstrate
compliance with that provision. See Taylor, 364 Or at 375(providing for that approach). Further, we focus our atten-
tion 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
4
Because the indictment in this case states that the public-indecency counts
stem from “separate act[s] and transaction[s],” they are not based “on the same
act or transaction” as the other counts, ORS 132.560(1)(b)(B). Further, although
the state argued at trial that, on its face, the indictment sufficiently alleged that
all of its counts were “connected together or constitut[ed] parts of a common
scheme or plan,” ORS 132.560(1)(b)(C), it does not advance that argument on
appeal. See also Miller, 296 Or App at 423 (“If the state chooses to allege facts
instead of the language of ORS 132.560(1)(b)(C) in an indictment, the state must
use some language specifically connecting the crimes together, or specifying the
crimes’ common scheme or plan.” (Internal quotation marks omitted.)). Thus, we
focus on ORS 132.560(1)(b)(A).
5
As noted, defendant has never contended that Counts 1 through 7 were
improperly joined, and we express no opinion on whether they all allege “sexual
offenses” as the state contends or whether, for that or some other reason, they
satisfy the joinder statute.
590 State v. Gialloreto
set forth in State v. Gaines, 346 Or 160, 171-73, 206 P3d
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 substan-
tially 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 indict-
ment with one count of first-degree sodomy and one count
of first-degree sexual abuse, both alleged to have been com-
mitted against the same child, as well as 15 counts of first-
degree encouraging child sexual abuse (ECSA). 300 Or App
at 675. 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 sim-
ilar character,” ORS 132.560(1)(b)(A); specifically, they all
related to the sexual abuse of a child. Id. at 676. 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.
On appeal, we recognized, as we had previously,
that ORS 132.560(1)(b), and, specifically, the “same or simi-
lar 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] intended
the Oregon statute to be construed consistently with the
federal rule.’ ” Id. at 679-80 (quoting Poston I, 277 Or App at
144). Accordingly, we looked to federal case law construing
FRCrP 8(a) for guidance in construing the phrase “same or
similar character” in our own statute. Id. at 680 (citing State
v. Walker, 356 Or 4, 23-24, 333 P3d 316 (2014) (explaining
that federal case law predating the enactment of an Oregon
statute modeled on a federal statute provides useful context
in construing our own statute; later case law is considered
only for such persuasive value as it may have)).
Following a canvas of approaches adopted in vari-
ous federal circuits—including the Ninth Circuit’s approach
in United States v. Jawara, 474 F3d 565 (9th Cir 2007)—as
Cite as 301 Or App 585 (2019) 591
well as a review of Oregon case law addressing ORS 132.560
(1)(b)(A), we concluded 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 indict-
ment, and which takes into consideration a variety of fac-
tors, including the potential for evidentiary overlap and
temporal proximity.”
Garrett, 300 Or App at 682. In drawing that conclusion, we
rejected what we viewed as “a narrower categorical approach,”
such as that taken by the Seventh Circuit in United States v.
Coleman, 22 F3d 126, 133-34 (7th Cir 1994), “which focuses
almost exclusively on the likeness of the ‘class’ or category
of the offenses and does not necessarily depend on temporal
proximity or evidentiary similarity.” Garrett, 300 Or App
at 680, 683 (comparing the Seventh Circuit’s approach to
that suggested by the state, which broadly characterized
the defendant’s alleged conduct as “sexual crimes against
children”). We therefore also found it necessary to “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 classification alone, in favor of a
more thorough review that focuses on the particular allega-
tions in the indictment.” Id. at 683.
Ultimately, in Garrett, we established the following
analysis under ORS 132.560(1)(b)(A), which, informed by
the federal authorities that we found most persuasive, we
had distilled from Oregon case law:
“[T]o determine whether charges are of ‘the same or sim-
ilar character’ under ORS 132.560(1)(b)(A), we consider
factors such as the temporal proximity of the acts, simi-
larities 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 allega-
tions in the indictment.”
Id. at 684. Upon applying our new analysis to the indict-
ment at issue in that case, we concluded that the defendant’s
592 State v. Gialloreto
ECSA charges were not of the same or similar character as
his allegations of sodomy and sexual abuse. Id. at 690.
We turn to an application of the principles articu-
lated in Garrett to the indictment challenged in this case.
First, as we did in Garrett, we “eschew the state’s categor-
ical approach,” id. at 683 (rejecting broad classification of
offenses as “sexual crimes against children”), which here
would categorize all of the charges in the indictment as
“sexual offenses.” However, taking that characterization as
a reference point of sorts, we begin by comparing defendant’s
public-indecency charges with the only other charge in the
indictment that necessarily involves sexual conduct, Count 1,
alleging rape in the first degree under ORS 163.375.6 The
indictment alleged that offense as follows:
“Count 1: RAPE IN THE FIRST DEGREE (* * * ORS
163.375)
“* * * * *
“The defendant, on or about June 10, 2015, in Washington
County, Oregon, did unlawfully and knowingly engage in
sexual intercourse with [J] by means of forcible compulsion.”
As charged in this case, a person commits the crime
of rape in the first degree if the person “has sexual inter-
course with another person” and “[t]he victim is subjected to
forcible compulsion.” ORS 163.375(1)(a). And, to prove that
offense as alleged in the indictment, the state had to estab-
lish that defendant: (1) knowingly; (2) engaged in sexual
intercourse; (3) by means of forcible compulsion; (4) with J;
(5) on or about June 10, 2015; (6) in Washington County.
Public indecency, as charged here, is defined as “[a]n
act of exposing the genitals * * * with the intent of arousing
the sexual desire of the person or another person” “while
in, or in view of, a public place.” ORS 163.465(1)(c) (2015).
To prove each offense of public indecency as alleged in
the indictment, the state needed to establish that defen-
dant: (1) exposed his genitals; (2) while in view of a public
6
As noted above, 301 Or App at 588 n 3, defendant does not contend that any
of Counts 1 through 7 were improperly joined with each other. Thus, if the public-
indecency counts, Counts 8 through 11, were properly joined with any of the first
seven counts, then the trial court did not err in denying defendant’s demurrer.
Cite as 301 Or App 585 (2019) 593
place; (3) with the intent of arousing the sexual desire of
defendant or another person; (4) between May 1, 2015 and
June 10, 2015; (5) in Washington County. Further, given
the way that each of Counts 8 through 11 were charged,
the state would also need to establish that each of those
offenses had been committed “[i]n a separate act and trans-
action from the crimes alleged” in all of the other counts.
Comparing just the material elements of each
offense—that is, setting aside for now our consideration
of the significance of the alleged date and location of each
offense—there is little if any similarity between the ele-
ments of defendant’s rape charge and his public-indecency
charges. Rape requires a specific form of physical contact—
sexual intercourse—with another person—the victim—
while public indecency requires neither physical contact of
any kind nor the involvement of any other person; it only
requires that the person’s act of exposure be in, or in view
of, a public place. See Garrett, 300 Or App at 687 (noting
similar distinction between sodomy and encouraging child
sexual abuse). Additionally, public indecency includes an
intent element—the intent to arouse the sexual desire of
the person or another person—while rape in the first degree
requires proof of knowing rather than intentional behavior
and sexual desire is irrelevant; the focus of that crime is
violence or a threat of violence, namely, the use of forcible
compulsion, and not the sexual desires of either the defen-
dant or the victim. See ORS 163.305(1) (“Forcible compul-
sion” includes both the use of physical force and an express
or implied threat causing fear of injury or death). See also
Garrett, 300 Or App at 686-87 (considering the factor that,
unlike first-degree sexual abuse, neither sodomy nor ECSA
require proof of arousal or gratification of the sexual desire
of either party).
We turn to temporal proximity. Here, the indict-
ment alleges that Counts 1 through 7 all occurred on or
about June 10, 2015. Furthermore, other contextual clues
on the face of the indictment suggest that those offenses all
occurred in the same incident. For example, except for the
burglary charge noted above, all of those allegations name J
as the victim; the underlying crime for the burglary charge,
Count 3, is rape, as alleged in Count 1; the robbery and
594 State v. Gialloreto
assault charges, Counts 2 and 4, allege the use of a danger-
ous weapon; Counts 5 and 6 allege possession of a danger-
ous weapon; and so on. Thus, the indictment provides an
ample factual basis—in addition to the fact that the first
seven offenses are alleged to have occurred on or about the
same date—for a reader to infer that those offenses were
temporally connected.
The same is not true as to the public-indecency
charges. Rather than being alleged as having occurred on
the same specific date as Counts 1 through 7 (on or about
June 10), Counts 8 through 11 are alleged to have occurred
sometime over a range of dates (May 1 through June 10),
with only the end date corresponding to the alleged date of
the first seven offenses. More significantly, perhaps, none of
the factual allegations of the last four offenses correspond in
any apparent way to the first seven offenses charged, thus
those allegations do not support an inference that they were
temporally related. Finally, the indictment expressly alleges
that each of the last four counts occurred in “a separate act
and transaction” from every other count of the indictment.
Although that does not necessarily suggest that each act of
public indecency occurred on a date other than the alleged
date of the home-invasion, it certainly suggests that none of
those instances of public indecency occurred as part of the
same incident as the first seven counts. Thus, this factor,
like the comparison of the elements of each offense, tends
to suggest that the indictment does not satisfy the “same or
similar character” requirement of ORS 132.560(1)(b)(A).7
As to the remaining considerations, including such
things as “similar evidence or evidentiary overlap, and
whether the charges involve the same or similar victims,
locations, intent, modus operandi, or acts,” Garrett, 300 Or
App at 684, nothing in the allegations of the indictment
suggests the presence of any of those factors. We recognize,
based on the evidence produced at trial, that the offenses
were all alleged to have occurred in more or less the same
7
We do not mean to suggest that offenses that occur over a matter of weeks
cannot be temporally proximate, but only that here, the manner in which the
indictment alleges incident dates and other facts does not suggest a temporal
relationship that weighs in favor of a determination that the various offenses
were of the same or similar character.
Cite as 301 Or App 585 (2019) 595
location—defendant’s apartment building.8 Also, even though
there is no apparent evidentiary overlap between the two
sets of offenses and, as noted, the offense of public inde-
cency does not require a victim, the record tell us that there
was at least one witness in common between the first seven
counts of the indictment and the public-indecency counts:
J, who reported having seen defendant masturbating from
outside his window and who is the complainant as to the
home-invasion rape and related charges. The problem with
relying on that information in the context of a demurrer is
that none of it is apparent from the face of the indictment.
Thus, as the Supreme Court has explained, it has no bear-
ing on whether the factual allegations of the indictment
sufficiently allege a basis for joinder under ORS 132.560(1).
Warren, 364 Or at 113 (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.”).
In light of the foregoing, we conclude that the indict-
ment in defendant’s case did not allege sufficient facts to
demonstrate compliance with the joinder statute. That is,
neither the elements of the relevant offenses nor the alle-
gations of the indictment suggest that defendant’s public-
indecency charges are of the “same or similar character”
as his rape charge or any other of the first seven counts of
the indictment.9 Accordingly, Counts 8 through 11 should
not have been joined with Counts 1 through 7, and the trial
court therefore erred in disallowing defendant’s demurrer.
We turn to whether the trial court’s error was
harmless. Under Article VII (Amended), section 3, of the
Oregon Constitution, we must affirm a conviction if there
is little likelihood that an error affected the verdict. Here,
8
Given considerations such as venue and jurisdiction, the vast majority of
indictments will include only offenses that are alleged to have been committed
in the same county. Accordingly, we see little or no significance in the allega-
tion that, in this case, defendant committed each of the charged offenses in
Washington County.
9
We have considered the remaining counts of the indictment in light of
Garrett and, like the rape charge, none of those offenses provides a sufficient
basis to demonstrate compliance with the joinder statute.
596 State v. Gialloreto
“whether improper joinder of charges affected the verdict
depends [in part] 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 I, 277 Or App at 145. Or,
as the Supreme Court has articulated that test, the “disal-
lowance of a demurrer based on improper joinder is harmful
if the improper joinder resulted in the admission of unfairly
prejudicial evidence.” Warren, 364 Or at 132.
That harmlessness analysis requires us to examine
the improperly joined charges as though they had been tried
separately and to determine whether “[a]ll of the evidence
that was presented at defendant’s trial would have been
admissible” at each separate trial. Poston I, 277 Or App at
146. In that context, evidence is “admissible” 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 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.”
State v. Clardy, 286 Or App 745, 772-73, 401 P3d 1188,
adh’d to as modified on recons, 288 Or App 163, 406 P3d 219
(2017), rev den, 364 Or 680 (2019). Further, in addition to
considering whether a defendant has been prejudiced by the
factfinder’s exposure to evidence that was not “admissible”
in the sense of Poston I, we must also consider other poten-
tial causes of prejudice. Specifically, as the Supreme Court
has explained,
“improper joinder can prejudice a defendant in several
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 verdict
on other charges, or if the evidence could confuse the jury.
Therefore, if the disallowance of a demurrer allows charges
to be tried together improperly and the joint trial affects
the defense in any of those ways, the disallowance may be
prejudicial.”
Cite as 301 Or App 585 (2019) 597
Warren, 364 Or at 132-33 (describing Poston I’s prejudice
analysis as “incomplete”) (citation omitted).
Starting with the prejudice analysis from Poston I,
we first consider whether evidence related to defendant’s
home-invasion rape charge and other alleged person crimes
would have been admissible in a separate trial on Counts
8 through 11, the public-indecency charges. As to those
counts, we accept the state’s concession that the trial court’s
error was not harmless. It is certainly plausible, given the
availability of several percipient witnesses and the distinct
character of the public-indecency charges, that a trial court
would have excluded as unfairly prejudicial much or all of
the graphic evidence regarding defendant’s alleged person
crimes. It is a closer question whether, in a separate trial
on defendant’s charges of rape, burglary, robbery, assault,
strangulation, and unlawful use of a weapon, it is plausible
that a trial court would have excluded evidence of defen-
dant’s alleged acts of public indecency under OEC 403 or on
some other discretionary basis. In arguing that it is plau-
sible, defendant points out that two witnesses, J’s neighbor
and a police officer, testified solely as to the public-indecency
charges, and argues that their testimony tended to “paint
the defendant as a bad guy or a pervert with a propensity
to be sexually inappropriate.” The state responds that it is
“obvious” that evidence that J saw defendant masturbating
would have been admissible to establish defendant’s sexual
interest in her and his motive for assaulting her.10 Whether
or not that is true, it misses the mark. Defendant points to
potential prejudice resulting from the evidence that other
people had witnessed his alleged acts of public indecency,
and the state has offered no theory as to how that evidence
would have been independently admissible in the rape-
related trial and therefore was not prejudicial.
When we turn to the additional considerations iden-
tified by the Supreme Court in Warren, it becomes even more
evident that the improper joinder in this case prejudiced
10
We emphasize that, although that argument suggests an evidentiary over-
lap that may be relevant to our Garrett analysis, nothing about the allegations of
the indictment provided a basis for understanding that any of the conduct under-
lying the public-indecency charges were witnessed by, or in any way related to, J.
598 State v. Gialloreto
defendant. We note that defendant only waived his right to
a jury trial after the trial court denied his demurrer and
motion to sever. “Defendant’s decision to waive the jury or
risk prejudice in the rape case from the admission of the
sexual abuse evidence would not have been necessary had
defendant been granted separate trials with separate juries.
The imposition of that decision on defendant was itself prej-
udicial.” State v. Bray, 55 Or App 694, 698, 639 P2d 702,
rev den, 292 Or 825 (1982). When that circumstance is com-
bined with the prejudicial effect of the testimony that was
unrelated to the complainant, we cannot conclude that there
was little likelihood that the court’s error affected the out-
come. Accordingly, we reverse and remand.
Reversed and remanded.