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Defendant Hernandez-Coronado petitioned for review after his loss at the Court of Appeals, and this was how the petition presented the legal questions:

The issues on appeal include (1) whether the state must elect to proceed on specific instances of misconduct when a defendant is charged with multiple instances of misconduct that occurred during a period of similar, but not necessarily unlawful conduct (here, charges of forcible sexual conduct in an ongoing relationship during which at least some of the sexual conduct was consensual); (2) whether the prosecutor’s arguments purporting to limit when the jury may find reasonable doubt and asking the jury to consider that the police failure to seek evidence was not the complainant’s fault were improper in the context of the continuing development of the Chitwood line of cases; (3) whether the application of mandatory minimum sentences designed to address recidivism to defendants without criminal history when said defendants receive multiple convictions at once results in a constitutionally disproportionate sentence.

The Supreme's denied review, but the press release announcing that decision notes the following:

(Flynn, C.J., and Duncan, DeHoog, and James, JJ., concurred in denying review but observed that the first issue presented in the petition raised an important legal issue that the Court should consider in an appropriate case)

I've never seen 4 justices "concur" in this manner. That suggests a level of interest that comes close to guaranteeing Supreme Court review when they get a case that presents the issue free of defects.

If you're wondering, we don't know for certain which of the issues raised in the petition constitutes "an important legal issue." The order denying review does not say.

That said, the most likely candidate is: "(1) whether the state must elect to proceed on specific instances of misconduct when a defendant is charged with multiple instances of misconduct that occurred during a period of similar, but not necessarily unlawful conduct (here, charges of forcible sexual conduct in an ongoing relationship during which at least some of the sexual conduct was consensual)."

Part of my reason for thinking so is based on what was the apparent reason the court did not want to take it. The COA opinion included the following language:

Defendant argues that, because the state “was prepared to (and did) present evidence of sexual contact multiple times over the several-month duration of a relationship, but only charged two counts of each crime associated with those contacts,” a pretrial election was required to permit defendant to prepare his defense. We disagree that the trial court was required to grant a motion for pretrial election on the first day of trial. To be sure, in circumstances where discovery reveals “more criminal acts than were charged in the indictment” and provides “no clear way for [a] defendant to investigate which occurrences the state would rely upon at trial,” denying a defendant’s motion for pretrial election would likely violate their “right to notice of the charges against him sufficient to prepare and present his defense.” Id. at 338 (internal quotation marks omitted).

But when a defendant makes a motion for pretrial election on the first day of trial—as defendant did here—it is generally within the trial court’s discretion to deny that motion because the timing of the motion defeats the purpose of the election. A motion for a pretrial election exists to give the defendant “notice of the specific criminal acts that the state would prosecute at trial, in time for defendant[s] to tailor [their] defense to those specific incidents.” Id. at 339 (inter-nal quotation marks omitted; brackets in original; emphasis added); see also State v. Antoine, 269 Or App 66, 79 n 8, 344 P3d 69, rev den, 357 Or 324 (2015) (explaining that “eluci-dation of the state’s precise theory at trial does not cure the problem of a lack of pre-trial notice, given that such notice is essential to pre-trial investigation, trial preparation, and litigation of evidentiary issues”). Thus, we conclude that the trial court did not abuse its discretion in denying defendant’s pretrial motion for election made on the first day of trial.

So in other words, when you've got this situation, file the motion to elect (and the demurrer) early!

There are a handful of cases with this issue under advisement with the Court of Appeals. A couple of those involve both a demurrer and a motion to elect.

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.

I was surprised to discover that I haven't written a blog post on the post-Poston demurrer in years. It is absolutely something that should be in your arsenal. We don't know how viable it will be at the COA, but we should know soon.

A bit of history. Prior to State v. Poston, prosecutors never thought multi-count indictments had to include the basis for joining multiple counts. (Marion County appeared to be the exception to this rule.)

My experience with promoting what I then called the "improper joinder demurrer" made me see two things about defense attorneys. First, only a small percentage will ever file a motion that presents an issue of first impression*. And I mean small. Maybe five percent of defense attorneys. And two, even after it wins at the Court of Appeals and the clients of other lawyers are getting their cases entirely dismissed on appeal, 95% of those same lawyers who didn't file the improper joinder demurrer won't learn from their experience. The next time a novel, but legally sound, issue/motion/argument is handed to them on a silver platter (and a new one comes up every couple of years), they won't litigate that one either. (By the way, this is not to say that these attorneys are bad lawyers, though some of them are. It's to simply point out that they have no interest in being great lawyers.)

I also learned something about judges from the experience. Small county judges are far more likely to grant a motion of first impression than big county judges. I often heard about small county judges granting the improper joinder demurrer, but I don't think a single one granted it in Multnomah County.

The Poston opinion from both the COA and the Warren opinion from the Oregon Supreme Court held that joinder language needed to be put in the indictment. And ironically, by winning the argument, defense lawyers no longer had a way of getting indictments dismissed. because prosecutors immediately started putting the language in the indictment or amending indictments to conform to the Poston holding. But prosecutors are really lazy or they really, really want to keep the basis for joinder as ambiguous as possible, so they soon adopted the following practice, putting the following, fairly typical joinder language at the bottom of every multi-count indictment:

These counts are part of the same act or transaction, connected together by two or more acts or transactions with the other counts of this charging instrument, and of the same or similar character.

Note two things. This language tells you absolutely nothing and it is inherently contradictory. (Either counts are part of the same act and transaction or connected together by two or more transactions, but they can't be both.)

I think it is appropriate to file a post-Poston demurrer to this or similar language. It still fails to do what the law expects Poston language to do: inform the defendant of the theory of joining each count with every other count.

Before I get to the law on this, it is worth noting that the only time the COA has written substantively** on the post-Poston demurrer, it lost. State v. Anner, 335 Or App 388 (2024). A lot of people may have thought Anner foreclosed the issue, but it really didn't. At least I don't think it did, and that is why I think the COA has had a case called State v. Sims under advisement since early December, 2025. (Sims was not my case, just FYI.) Maybe I'm wrong, but it shouldn't take 10 months to say, "this issue loses under Anner."

I'm not going to lay out the entire argument here, but I'm happy to supply a sample motion to anyone who asks. But I will say this:

State v. Warren, 364 Or 105, 118, 430 P3d 1036 (2018) stated: "Thus, Huennekens indicates that, in order for an indictment to survive a demurrer based on improper joinder, two requirements must be met: (1) the indictment must allege the basis for joinder, and (2) that basis must be possible, given the offenses and facts alleged." [Bold added.]

Often, a multi-count indictment will fail one of those prongs. Sometimes the state will put counts in the indictment where joinder is not at all possible. https://scholar.google.com/scholar_case?case=17574397236390680608&q=brown+severance&hl=en&as_sdt=4,38 But in most cases, the multi-count indictment that alleges crimes from different days fails to allege "the" basis for joinder.

I think it is entirely reasonable that that language means something more than "we put all possible bases for joinder in the indictment and one of them must be the correct basis for joinder."

• Technically, it wasn't an issue of first impression. There was case law from decades earlier that supported the demurrer.

• • The post-Poston demurrer did result in the defendant winning on appeal and getting all his charges reversed. https://scholar.google.com/scholar_case?case=4932498355481776542&q=demurrer+levitt&hl=en&as_sdt=4,38 But it was for more of a procedural reason it won.

Okay, so assume I take your credit card and use it to buy a hot dog. I would be guilty of three crimes: Identity Theft, Fraudulent Use of a Credit Card (FUCC) and Theft 3. Only one of them is a felony, but as great as my attorney is, she can't get me a misdemeanor offer. We go to trial, and we lose.

The good news is, Identity Theft and FUCC merge. State v Haddon https://scholar.google.com/scholar_case?case=2195126958328344707&q=identity+theft+merger+fraudulent+credit+card&hl=en&as_sdt=4,38&as_ylo=2017

In sum, proof of the elements of fraudulent use of a credit card proves the elements of the offense of identity theft, in the forms in which the offenses were alleged in this case. At least as is alleged here, identity theft does not require proof of an element that is not already included in fraudulent use of a credit card. Therefore, the trial court erred in failing to merge the separate guilty verdicts in each of those pairs of offenses (Counts 1 and 3; Counts 2 and 4). That is, the pair of offenses occurring on the first date should merge; the pair of offenses occurring on the second date should merge.

The bad news is this. Even though all the elements of ID Theft (felony) are contained in FUCC (misdemeanor), I still end up with a felony conviction.

Defendant requests that the court vacate her convictions and sentences for misdemeanor fraudulent use of a credit card. We agree that the offenses merge into the more serious offense but describe the disposition more appropriately. State v. Cloutier, 286 Or. 579, 600, 596 P.2d 1278 (1979) (entry of conviction is for "the most serious of the offenses of which the defendant was guilty").

I think that result is wrong, but you've got to make a proportionality argument under Article I, section 16. It is disproportionate to impose a greater punishment (the felony conviction) on a lesser-included offense. You should raise it as both a straight vertical proportionality argument and as-applied, but you can't raise it until sentencing.

I wrote the following blog post not that long ago: https://libraryofdefense.ocdla.org/Blog:Main/Even_ignoring_the_constitutional_argument,_a_jury_must_unanimously_reject_an_EED_defense

Since then, I've seen a number of legal memos on that topic. They've been written in the hope of convincing the trial judge that a jury must in fact be unanimous in its rejection of EED. In other words, if 11 jurors reject EED, but 1 does not, it's a hung jury, not a murder conviction.

The memos I've read are thorough and reflect a deep understanding of the complex legal issues. If I were a law school professor, I would give each of them an A.

They also suck.

Part of the reason they suck is that they go on for pages and pages, when you need just four sentences total, two for the constitutional argument, two for the statutory. First, the constitutional argument.

"The COA rejected the constitutional argument that unanimity is required to reject the EED defense in State v. Wayman. The OSC now has the issue under advisement, so we will know in a year if the argument the COA rejected -- and we are adopting -- is the right one."

Now the statutory argument.

"In Richards v Brown, the COA held that the 2019 version of ORS 136.450 required that 10 out of 12 jurors reject the EED argument. In 2021, that statute was amended to require 12 out of 12 jurors."

Literally, that's all you need. If you want to go a little further, you could explain:

ORS 136.450(2019) said this: "136.450 Number of jurors required for verdict. The verdict of a trial jury in a criminal action shall be by concurrence of at least 10 of 12 jurors."

ORS 136.450(2021) says this: "136.450 Number of jurors required for verdict. (1) A jury in a criminal action may render a verdict of guilty only by unanimous agreement.

(2) A jury in a criminal action may render a verdict of not guilty only by a concurrence of at least 10 of 12 jurors."

The new version split the old version into two parts. Guilty has to be unanimous and not guilty by 10-2. Before 10-2 was enough either way.

The question then becomes, when the court in Richards v Brown made its ruling under the old version, did they base their holding on the fact that a guilty verdict only had to be 10-2 or on the fact that a not-guilty verdict had to be 10-2? Because obviously, if they based their holding on the fact that the statute said the not-guilty verdict had to be 10-2, then the state wins the argument that 10-2 is enough to reject. If they based their ruling on the fact that the guilty verdict had to be 10-2, and it now has to be unanimous, then you win.

To find the answer, we have to look at what the Richards opinion actually said. "Therefore, under ORS 136.450 (2019), just as ten jurors had to concur on the elements in order to render a guilty verdict for second-degree murder, ten jurors had to concur that petitioner had not proven her affirmative defense." [Bold added.]

Self-evidently, the Richards court based their decision on the fact that the statute in 2019 said 10 jurors had to agree on a guilty verdict. That portion of ORS 136.450 now says 12 jurors have to agree on a guilty verdict. The issue could not be more simple.

When you argue this, whether on paper or orally, if you are bringing up general verdicts and special verdicts, or what other jurisdictions have done in similar circumstances, then you don't understand what is persuasive to a judge who is juggling a million things and will be reflexively against disturbing the status quo.