State v. Pack
State v. Pack
Opinion of the Court
Defendant appeals a judgment finding him in contempt of court, ORS 135.290, for violating a no-contact order that the court had imposed in a separate case for fourth-degree assault and harassment. The court entered an order consolidating the charging instrument in the contempt of court case and the charging instrument in the assault and harassment case for trial. Defendant assigns error to the trial court’s consolidation of the charging instruments. We conclude that the consolidation of the charging instruments was harmless. Accordingly, we affirm.
The facts of this case are not in dispute. On October 28, 2014, defendant was arrested and charged with fourth-degree assault and harassment. Defendant was released from custody the following day and, as a condition of his pretrial release, the court prohibited contact between defendant and the complainant.
On January 13, 2015, defendant’s pretrial release was revoked because he failed to report to his supervising officer. Defendant was taken into custody, and he called the complainant from a jail telephone seven times. The following day, defendant was arraigned and released.
On March 26, defendant’s supervising officer wrote a failure to comply warrant and informed defendant that he needed to turn himself in. On August 27, defendant was arrested and taken into custody on that warrant. While he was in custody, defendant called the complainant from a jail telephone four more times. On September 9, the state charged defendant with 11 counts of contempt for the 11 calls that defendant had placed to the complainant from a jail telephone.
At a pretrial conference, the state moved to consolidate the charging instrument in the assault and harassment case with the charging instrument in the contempt case. The state argued that, under ORS 132.560,
The court concluded that the cases could be consolidated, and the charges could be joined, because the charges were “based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.” ORS 132.560(l)(b)(C). The court also ruled that defendant would not be prejudiced by the consolidation of the cases because the assault and harassment case would be tried to a jury and the contempt case would be heard by the court outside of the jury’s presence.
The court stated that, “when the jury’s not present,” it “would hear the additional evidence that the court would need to hear in order to determine the contempt proceeding.” The court explained the trial procedure as follows, “I think the procedure is, we’ll try to keep it clean and pristine so the evidence is not heard by the jury that I’m going to hear, and I will consider only the evidence that’s presented to me for purposes of determining the Contempt.” The jury acquitted defendant of the assault and harassment charges and the court found defendant in contempt on all 11 of the charged contempt counts.
On appeal, defendant argues that “[j]oinder was improper because the assault and contempt cases were not ‘connected together’ and were not part of a ‘common scheme or plan.’” Furthermore, citing to State v. Poston, 277 Or App 137, 370 P3d 904 (2016), adh’d, to on recons, 285 Or App 750, 399 P3d 488 (2017), defendant contends that the “erroneous
ORS 132.560 provides, in pertinent part:
“(1) A charging instrument must charge but one offense, and in one form only, except that:
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“(b) Two or more offenses may be charged in the same charging instrument in a separate count for each offense if the offenses charged are alleged to have been committed by the same person or persons and are:
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“(C) Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.
“(2) If two or more charging instruments are found in circumstances described in subsection (l)(b) of this section, the court may order them to be consolidated.”
Assuming without deciding that the trial court erred when it concluded that the joinder of the charged offenses was proper under ORS 132.560(l)(b)(C) and, therefore, the cases could be consolidated under ORS 132.560(2), we conclude that any such error was harmless. “Under Article VII (Amended), section 3, of the Oregon Constitution,[
“Poston demonstrates that evidence presented at 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 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 (2017).
Thus, as our first step in the “harmlessness” analysis, we consider whether all of the evidence that was presented at defendant’s trial would have been “admissible,” as that term was explained in Clardy, at a trial in which defendant was charged only with contempt. We cannot conclude that all of the evidence related to the assault and harassment charges would have been “admissible” at a trial in which defendant was charged only with contempt. Even if some of that evidence might be able to be admitted under a legally correct evidentiary analysis, it is not implausible that a trial court would have excluded some of the evidence related to the assault and harassment of the complainant.
However, that conclusion does not end the harmlessness analysis. In State v. Marks, 286 Or App 775, 784, 400 P3d 951 (2017), after we concluded that the court’s erroneous joinder of charges led to the admission of evidence
In this case, the evidence was presented in a distinct way to mitigate the danger of consolidating the charging instruments. The record reflects that “the trial court conducted a separate analysis of the evidence” on the contempt charges from that of the jury on the assault and harassment charges. Marks, 286 Or App at 785. As noted above, when the court consolidated the charging instruments, it stated that, “we’ll try to keep it clean and pristine so the evidence is not heard by the jury that I’m going to hear, and I will consider only the evidence that’s presented to me for purposes of determining the Contempt.” Our review of the record leads us to conclude that the court only considered evidence related to the contempt charges in reaching its verdict on those charges. Thus, the consolidation of the charging instruments was harmless.
Affirmed.
ORS 132.560, which governs the consolidation of charging instruments and joinder of charges, is set out later in this opinion. “[U]nder ORS 132.560, permissive joinder of multiple offenses and of multiple charging instruments involves several procedural steps. The court must first determine whether the charges
Because the jury acquitted defendant of the assault and harassment charges, and defendant did not appeal that judgment, we do not discuss whether the consolidation of the two charging instruments was an error that harmed defendant in that case.
Article VII (Amended), section 3, provides, in pertinent part:
“If the Supreme Court shall be of opinion, after consideration of all the matters thus submitted, that the judgment of the court appealed from was such as should have been rendered in the case, such judgment shall be affirmed, notwithstanding any error committed during the trial!.]”
Case-law data current through December 31, 2025. Source: CourtListener bulk data.