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Crime Sprees: Does Cross-Relate Refer to Elements or Circumstances?

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by: Ryan • June 3, 2011 • no comments

I have previously written numerous posts on "criminal episodes" and the impact on sentencing if there is a finding of separate episodes. They can be found here. As noted in many of those posts, case law holds that the most common way of determining if crimes are from the same criminal episode is if they "cross-relate."

Is there an easy rule we can cull from the case law to determine if crimes cross-relate?

First, there's the element theory of "cross-relate." In this situation, if the elements of one crime can be proven without referencing the elements of the other crime, then they do not cross-relate. Under this analysis, it doesn't matter that the circumstances surrounding the crimes (time, place and criminal objective) all overlap. When the state at sentencing wants charges to be from separate criminal episodes, the prosecutor will usually cite State v. Sparks, 150 Or App 293, 297 (1997).

In Sparks, the defendant burglarized three vacant hotel rooms from the same hotel. In finding separate criminal episodes, the Sparks court held:

A complete account of any one of the unlawful entries could be proven without reference to the others. Consequently, in the light of the meaning of the words "criminal episode," the rules relied on by defendant do not apply to his convictions.

But see Judge Armstrong's dissent, relying on "time, place and circumstance" to find one criminal episode in that case. Sparks was a split opinion at the Court of Appeals, and I'm not sure it is the most reliable authority out there. In looking at the case law as a whole, it does seem to be a bit of an outlier.

Regardless, under Sparks, if one can prove the elements of one burglary without reference to the other, that constitutes separate criminal episodes, even though the general circumstances (same hotel, same criminal objective, same night) all overlap.

Along similar lines, see State v. Stolz, 106 Ore. App. 144, 806 P.2d 715 (1991), which also addressed the proper application of "same criminal episode" for statutory former jeopardy purposes. In Stolz, a deputy sheriff went to defendant's residence and served him with a restraining order that required him to leave the premises immediately. Defendant called the order "ridiculous" and tried to close the door, but the deputy prevented him from doing so. Defendant argued with the deputy and shouted that he was not leaving. The deputy then told defendant that he was under arrest for violating the restraining order. As the deputy began to take defendant into custody, defendant tried to strike him. Eventually, the deputies were able to handcuff him and remove him from the residence. A second struggle ensued at the patrol car, when defendant struck the deputy in the head with his elbow.

So the violation of the restraining order and the resisting arrest were very nearly simultaneous. But the Court of Appeals concluded that the resisting arrest charge arose from a separate criminal episode from the charge (violation of the restraining order) for which the defendant was arrested, because "[d]etails of the offense underlying an arrest are not required to be shown to prove any element of resisting arrest."

Again, this is the type of case that the state will bring up at sentencing, because it supports separate criminal episodes and therefore could result in a greater sentence for the defendant. But it is a case the state would very much want to ignore if cited in a demurrer for improper joinder, since it would justify dismissing one or more counts in an indictment where, for example, the defendant was charged with felony theft for shoplifting and then resisted arrest when the police came. Or assume a traffic stop, where the defendant is charged with driving while suspended and possession of a controlled substance or a firearm. Under the strict cross-relate standard of Sparks, where one determines if the elements of one can be entirely proven without reference to the other, the DWS and the PCS or Felon in Possession are from different criminal episodes and therefore improperly joined (and subject to a demurrer).

Or to put it another way, if resisting arrest that occurs almost immediately after the violation of a restraining is not part of the same criminal episode, then how would PCS and FTA (for not appearing at the PCS arraignment or trial) ever be one criminal episode? If not, what would be the basis for joining them in one indictment?

The state made a Sparks-type argument, but lost, in a PCR case. In Williamson v. Schiedler, 196 Or App 302, 101 P3d 364 (2004), the defendant was charged with a commercial drug offense, which included as an aggravating factor the possession of a firearm, and he was charged with felon in possession, a consequence of possessing that same firearm. The drug crime, even including the enhancement fact of possession of a firearm, did not need to reference the defendant's status as a felon, i.e., that the mere possession of the firearm was unlawful. The court stated:

The state argues that a complete account of the drug charges can be given without including the details of the felon in possession of a firearm charges because the jury could have convicted petitioner of the commercial drug offenses without making a specific finding that he unlawfully possessed a firearm. However, simply omitting the fact that the jury found that petitioner unlawfully possessed firearms as part of the commercial drug offenses would not provide a complete account of the charges.

Here the court seemed to reject a strict Sparks analysis. But what does a "complete account of the charges" refer to? Presumably, more than just elements of the two crimes.

If we return to Armstrong's dissent in Sparks, he cited State v. Fitzgerald, 267 Ore. 266, 516 P.2d 1280 (1973) and argued that the majority put the cart before the horse:

The court first concluded that "two charges may be joined if they are closely linked in time, place and circumstance" and went on to state that "if the charges are joinable under that basic statutory test, no further inquiry need be made." Id. at 272 (emphasis supplied). Only if there were some doubt as to the link between the acts would it be necessary to examine the evidence in order to determine whether evidence of one act could be related without reference to evidence of the others. Id. I conclude, therefore, that the court's holding that separate offenses are part of the "same act or transaction" when "a complete account of one charge cannot be related without relating details of the other charge," id. at 273, must be read to apply only to those cases where there is some doubt whether the offenses are closely "linked in time, place or circumstance."

This minority opinion does seem consistent with State v. Boyd, which held that it violated double jeopardy to prosecute the possession of stolen property separately from the possession of controlled substances, when both were found during the execution of a single search warrant.

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 Or 558, 571 (1975) [Emphasis added.]

In Boyd, proving the possession of drugs does not require any reference at all to the possession of stolen property, yet because they were joined in time, place and circumstance, they were held to be one criminal episode. Is Boyd an exception to the cross-relate rule, or is it consistent with the Armstrong dissent, suggesting that the minority should have prevailed in Sparks?

Further, note this analysis from 2007.

The state is correct that various circumstances-e.g., temporal and spatial proximity and commonality of purposes-are, when considered in isolation, insufficient to compel a determination that different offenses arose from the same criminal episode. Nevertheless, where those circumstances are so interrelated that a complete account of one offense cannot be related without relating details of the other(s), the offenses must be deemed to have arisen from the same criminal episode, including with respect to calculation of criminal history score. [snip] Most significantly, in large part as a product of those circumstances, it would have been functionally impossible for defendant to present his defense as to attempted assault against Hannigan-viz., that he was crouched down behind the wheel of his truck in a panicked response to avoid being hit by the other officers' gunshots-without relating details of the encounter with those officers. By the same token, those circumstances bear directly on the state's ability to prove that defendant intended to cause serious physical injury to Hannigan, as opposed to merely acting recklessly. Because of that inextricable functional intertwining, this case differs sharply from those, like Fore and Stoltz, that the state invokes

State v. Norman, 216 Ore. App. 475, 490 (Or. Ct. App. 2007)

In short, the COA recognized in Norman that time, space and commonality of purpose all play a role in determining one criminal episode, but they are not dispositive in and of themselves. But the fact that they play a role at all means that merely being able to prove the elements of one crime without reference to the elements of the other crime - what I'll call the "strict Sparks" analysis - is similarly not dispositive in and of itself.

It's also worth noting the following analysis from 2002, in large part because of its emphasis on "time, place and circumstance," and its discussion of "same criminal objective."

Applying ORS 131.505(4) to the facts of this case, we agree with defendant that the burglary and robbery are so joined in time, place and circumstance that a complete account of each charge cannot be related without also relating the details of the other charge. First, all of the acts were committed within a few minutes in the driveway and the shop area of the Whitehead property. The conduct involved the same victim. The robbery occurred in the course of Whitehead's discovery that defendant had unlawfully entered his garage and stolen his car and the gun that defendant used to threaten Whitehead. The state acknowledged as much in its closing argument, when it told the jury that defendant "completed [the burglary] by stealing the car." On appeal, the state argues that the burglary and the robbery were not directed toward the same criminal objective. According to the state, the objective of the burglary was to steal Whitehead's property, and the objective of the robbery was to threaten Whitehead so he could escape with the property he had just stolen. We think that that kind of parsing of defendant's criminal objective is inconsistent with the intent of ORS 131.505(4). Under the facts of this case, the criminal objective of the burglary was to steal Whitehead's gun, personal property and car. The criminal objective of the robbery was, in the language of ORS 164.395, to "prevent or overcome resistance to the taking of" the personal property and the car immediately after the taking. ORS 131.505(4) is aimed at "continuous and uninterrupted conduct" that is directed to a single criminal objective. While defendant may have acquired an additional criminal objective to escape when confronted by Whitehead, his earlier objective to steal Whitehead's property continued during the course of all of the events. Because the facts underlying the robbery and burglary were so closely joined in time, place and circumstances as to show that defendant continued to pursue the same criminal objective to deprive Whitehead of his property, we conclude that the trial court erred in concluding that the burglary and the robbery were separate criminal episodes. We affirm defendant's convictions but remand the case for resentencing pursuant to ORS 138.222(5). State v. Kautz, 179 Or App 458, 466-467 (2002)

In sum, you will have a case involving a variety of different crimes that loosely occur in the same afternoon, and you will read all the cases above, and you will do a careful analysis, and you still won't know for certain if the crimes arise from one criminal episode. Again, however, there is a very simple solution. Demur to the indictment (assuming that the charges couldn't be joined based on alternative theories of being similar crimes or part of the same scheme or plan). Argue improper joinder and let the state argue they are one criminal episode. When you lose that argument, your client is better off, because the prosecutor and the trial court are already locked into a "single criminal episode," and as a result, your client may benefit significantly at sentencing. This argument is laid out in more detail here.


Ryan Scott is a partner in Scott & Huggins.