Post-Poston Demurrer Adjacent

by: Ryan Scott • October 25, 2026 • no comments

In State v. Vanecek, 351 Or App 853 (2026), there was a very interesting legal issue that the COA dodged because it was unpreserved. Here's the factual summary of what happened at the trial level. Note that the defendant was pro se.

When the trial court and the parties were discussing jury instructions after the close of evidence, the court noted that, as part of the verdict form, the jury would be asked whether Counts 4 and 5 were "separate criminal episodes." Defendant, who was representing himself with the aid of a legal advisor, objected and asserted that "the charging instrument itself reads it as a single course of action, a single episode." The court responded, "Well, it gives a date range. And there was testimony of different times. And so that's for the jury to decide. And it determines the ability of consecutive * * * not consecutive." The court and defendant continued to discuss the jury instruction, with defendant repeating his argument that the state charged "one action." The state contended that it understood defendant's argument to be a demurrer issue if defendant was unclear on what acts Counts 4 and 5 applied to. In the alternative, the state explained that, if the court determined that the particular finding on the verdict form would not apply because of the charging instrument, the state would ask the court to modify the indictment based on the evidence presented in court.

Ultimately, the court ruled on the issue the next morning, explaining that it was going to strike the "same act or transaction" language from Count 5 on the indictment. The court reasoned that the amendment would conform to the evidence presented at trial and that it did not change any element of the crimes. The court further explained that the jury would determine whether the counts were "separate criminal episodes." Defendant again objected: "I object to the changing of the indictment. That's--that's pretty much it."

In an opinion written (not surprisingly) by Judge Powers, the court held that the pro se defendant did not preserve the arguments he makes on appeal.

Before the trial court, as briefly described above, defendant objected to the amendment to the indictment, the special verdict form, and the court imposing consecutive sentences, asserting that the state had charged a single act or course of conduct and not separate criminal episodes. On appeal, however, defendant contends that the root of all his objections was that it was unlawful for the state to charge him with acts that constituted the same act or transaction yet seek convictions and sentences for acts that took place during separate criminal episodes because those acts neces-sarily could not be the same acts that were charged in the indictment. We disagree with defendant’s assertion. At trial, defendant did not make the argument that he now makes on appeal—viz., that removing the “same act or transaction” language violated his constitutional right to be “tried only for the specific criminal act as to which the grand jury handed down the indictment.” State v. Long, 320 Or 361, 370 n 13, 885 P2d 696 (1994), cert den, 514 US 1087 (1995) (citing Or Const, Art VII (Amended), § 5(3)).Although defendant made repeated objections, his objections were not specific enough to put the state on notice that he was arguing that the state had to provide evidence of what it presented to the grand jury to demonstrate that defendant was not convicted based on facts that were not found by the grand jury. See State v. Daniels, 261 Or App 519, 525, 323 P3d 491, rev den, 355 Or 668 (2014) (observing that if the “defendant raised that issue below, the prosecutor might have been able to show, for example, that the same evidence that was presented at trial was also presented to the grand jury”); see also Wyatt, 331 Or at 343 (explaining that “a party must provide the trial court with an explanation of his or her objection that is specific enough to ensure that the court can identify its alleged error with enough clarity to permit it to consider and correct the error immediately, if correction is warranted”). [Bold added.]

This story may have a happy ending. Last week, the Oregon Supreme Court granted review to Vanecek.

On review, the issue is:

Whether a district attorney may amend one count in an indictment by removing text stating that the count was part of the same act or transaction as another count in the indictment so that the state can pursue a conviction and consecutive sentences based on a theory that the amended count was a separate criminal episode from the other count in the indictment.

I think this case is a sideways reminder of the importance of State v. Poston. Prosecutors really don't want to commit to their theory of joinder in the indictment. Before Poston, they simply didn't say the basis. Post-Poston, they simply allege every possible basis. And it's true, sometimes it will still be obvious, but sometimes it won't be. That ambiguity helps the prosecutor. So when appropriate, file the post-Poston demurrer, a motion objecting to improper joinder and a motion to sever. Being aggressive in this situation can potentially pay big dividends, even if we don't know yet exactly how beneficial it will be. And that ambiguity favors your client.