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Can you reconcile these two holdings?

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by: Ryan • December 31, 2011 • no comments

Here's a quote from the Oregon Supreme Court. At issue is whether the simultaneous possession of a stolen tv and drugs, found during the execution of single search warrant, constitutes one criminal episode. It's a bit old, but it has never been disavowed.

"The criminal code treats the fact of possession as a criminal act of a continuing nature. In this statutory sense, the possession of the television set and the drugs, existing at the same place and time, constitute a single occurrence. Once unlawful possession of goods, without more, is recognized as criminal conduct, there is no reason for fragmenting the criminal conduct into as many parts as there are different items of property, however acquired. If a defendant is charged with the possession of drugs, some of which had been acquired at one time and the rest at another time, it would seem clear that he would be entitled to object to multiple prosecutions. There would be no reason other than harassment of the defendant for the state to divide the condition of possession into parts and prosecute separately on each. The case should not be treated any differently simply because the items of contraband happen to be of different types. We hold, therefore, that the Court of Appeals properly treated this as a single episode."

State v. Boyd, 271 Ore. 558, 570-571 (Or. 1975)[Emphasis added.]

Now compare this quote from the Court of Appeals from last week, involving multiple guns found during the execution of a single search warrant but in different places within the same house.

"The key consideration is whether the guns were acquired by separate acts. State v. Collins, 100 Or App 311, 785 P2d 1084 (1990). . . . Similarly, here, the responding officers found seven separate firearms in petitioner's home, and there was circumstantial evidence, such as the placement of guns in the closet and under the bed, that they were concealed by separate acts. As a result, there was sufficient evidence for the trial court to conclude that the firearms were acquired separately; therefore, it was proper to sentence petitioner to consecutive sentences for two counts of felon in possession of a firearm without applying the 'shift-to-I' rule, and petitioner's trial counsel was not inadequate for failing to argue otherwise"

Orchard v. Mills, ___ Or App ___ (Dec 29, 2011)[Emphasis added.]

So, the OSC says that it's one criminal episode when different pieces of contraband are found at the same time, "however acquired." But the COA says that even the slightest inference that the items were acquired at different times means their (simultaneous) possession constitutes different criminal episodes.

The only way these two cases can be reconciled is to claim that the "same criminal episode" analysis in Boyd involves an analysis under the double jeopardy clause and the one in Orchard v. Mills is a different analysis of the same phrase under the statutes and administrative rules. But there has never been an opinion that I'm aware of that has made that distinction, and there are many opinions where the COA suggests case law interpreting the phrase can be used interchangeably.

Let me emphasize again that defense attorneys need to be raising this issue pre-trial. A demurrer is the appropriate remedy when counts are improperly joined. If drugs are found in the glove compartment, and a gun in trunk, then under the case law cited by Orchard v. Mills, the inference is that those items were acquired at different times and therefore arise from separate criminal episodes. (This is assuming it's just a mere possession of drugs, not a CDO Delivery that alleges possession of a firearm.) Pretrial, judges will be predisposed to finding one criminal episode and consequently they will overrule your demurrer. Having done so, they will resist reaching the opposite conclusion at sentencing. And you'll have an issue for appeal (i.e., the failure to dismiss the indictment).

These improper joinder demurrers are not hard to write. Samples can be found on this website. It will likely take you less than ten minutes to change the names and the charges in the indictment. You don't know any other attorney who has filed such a motion? Good. Be better than the attorney next to you. Raise the bar.