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The Brown-Poston Demurrer

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by: Ryan Scott • September 28, 2023 • no comments

This is from a Brown-Poston demurrer.


Under current case law, the state must allege the legal basis for joining counts in a mult-count indictment. If the basis for joinder is not properly alleged, the indictment is vulnerable to a demurrer.
Under more recent case law, specifically State v. Brown, 326 Or App 46, 57 (2023), the Court of Appeals has held that, in order for joinder of multiple counts to be proper, each count must be properly joined with every other count. In other words, that A is properly joined with B and B is properly joined with C is not enough to allow joinder in one indictment unless A is also properly joined with C.
In this case, the indictment expressly alleges why some of the counts are properly joined with some of the other counts. However, under Brown, that is not good enough. It is not sufficient to alleged, as here, that “Count 7 (Reckless Driving) was “of the same or similar character and a common scheme and plan as Count 5.” It must set forth in the indictment why count 7 is properly joined with all other counts in the indictment, not merely one other count.