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The Post-Poston Demurrer
by: Ryan Scott • September 26, 2026 • no comments
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 opinions from both the COA and 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 practince, 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 they 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.
The FUCC proportionality argument
by: Ryan Scott • September 13, 2026 • no comments
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.
This Post is Really Not About EED
by: Ryan Scott • August 30, 2026 • no comments
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.
