Chapter 132

 

      Chapter 132

 

NOTES OF DECISIONS

 

      A circuit court has no authority to order the wholesale recordation and preservation of grand jury testimony under either statutory or common law. State ex rel Johnson v. Roth, 276 Or 883, 557 P2d 230 (1976)

 

      Where defendant was found in contempt for failure to comply with grand jury subpoena, circuit court had no authority to examine grand jury testimony or discuss its content for the sole purpose of determining the sentence to impose. State v. Applegate, 41 Or App 287, 597 P2d 1290 (1979), Sup Ct review denied

 

      132.010

 

NOTES OF DECISIONS

 

      Grand jury selection under temporary law enacted expressly in lieu of ORS 10.030 was valid. State v. Hutchinson, 169 Or App 264, 9 P3d 722 (2000), Sup Ct review denied

 

      132.020

 

NOTES OF DECISIONS

 

      A grand juror’s knowledge of events under investigation does not require the constitution of a new grand jury. State v. Ore. City Elks Lodge No. 1189, 17 Or App 124, 520 P2d 900 (1974), Sup Ct review denied

 

      The grand jury which indicts can rely only on evidence presented to it. State v. Ore. City Elks Lodge No. 1189, 17 Or App 124, 520 P2d 900 (1974), Sup Ct review denied

 

      Requirement that inquiry or investigation be made entirely by same grand jury does not prohibit one grand jury from investigating matter into which another grand jury has initiated investigation. State v. Ore. City Elks Lodge No. 1189, 17 Or App 124, 520 P2d 900 (1974), Sup Ct review denied

 

      132.030

 

      See annotations under ORS 132.040 in permanent edition.

 

      132.050

 

NOTES OF DECISIONS

 

      A grand juror’s knowledge of events under investigation does not require the constitution of a new grand jury. State v. Ore. City Elks Lodge No. 1189, 17 Or App 124, 520 P2d 900 (1974), Sup Ct review denied

 

      132.080

 

NOTE: Repealed as of August 2, 2017

 

NOTES OF DECISIONS

 

      Handwritten notes kept by clerk of grand jury, pursuant to this section, are not discoverable. State v. Goldsby, 59 Or App 66, 650 P2d 952 (1982)

 

      132.090

 

NOTES OF DECISIONS

 

      Where an order is sought for recordation of testimony before a grand jury, all testimony of all witnesses must be recorded or none can be recorded. State ex rel Drew v. Steinbock, 286 Or 461, 595 P2d 1234 (1979)

 

      This section gives court authority to order recordation only on motion made by district attorney, and trial court erred in granting plaintiffs’ petition for alternative writ of mandamus requiring recordation of all testimony before grand jury in matter for which plaintiffs were subpoenaed. State ex rel Woodel v. Wallace, 89 Or App 478, 750 P2d 178 (1988), Sup Ct review denied

 

      132.110

 

NOTES OF DECISIONS

 

      Permitting grand jury originally composed of seven members to proceed with six or five members for good cause does not violate Article VII (amended), section 5, requirement that grand jury have seven members. State v. Conger, 319 Or 484, 878 P2d 1089 (1994)

 

      132.220

 

NOTES OF DECISIONS

 

      This section does not provide exclusive means by which testimony from grand jury proceedings may be produced. State v. Dickerson, 112 Or App 51, 827 P2d 1354 (1992), Sup Ct review denied

 

      132.310

 

NOTES OF DECISIONS

 

      Grand jury could not indict defendant for failure to report child abuse, a violation by explicit statutory terms, as this section authorizes inquiry only into crimes. State v. Payzant, 32 Or App 371, 574 P2d 677 (1978) Sup Ct review denied

 

      132.320

 

NOTES OF DECISIONS

 

      ORS 135.510 sets out exclusive statutory grounds for setting aside indictment and, because those grounds do not include use of hearsay evidence, trial court was not required to set aside indictment on that ground. State v. Stout, 305 Or 34, 749 P2d 1174 (1988)

 

LAW REVIEW CITATIONS: 10 WLJ 145 (1974); 19 WLR 347 (1983); 62 OLR 507 (1983)

 

      132.340

 

NOTES OF DECISIONS

 

      Prosecutor has authority to subpoena witnesses before grand jury but inquisitorial power to compel testimony resides in grand jury; attorney-witness before grand jury who refused to answer question on ground of attorney-client privilege could not be compelled to testify by prosecutor’s asking court on behalf of grand jury to order answer to question. State ex rel Frohnmayer v. Sams, 293 Or 385, 648 P2d 364 (1982)

 

      132.400

 

NOTES OF DECISIONS

 

      Indorsement as true bill does not require that words “true bill” be handwritten by foreman. State v. Cox, 12 Or App 215, 505 P2d 360 (1973), Sup Ct review denied

 

      132.430

 

NOTES OF DECISIONS

 

      When a grand jury indicts for a certain crime based upon a certain set of facts it does not automatically render a “not true bill” on any greater offense under which the defendant might have been indicted. State v. Rankin, 21 Or App 721, 536 P2d 538 (1975)

 

      Where first grand jury returned two rape indictments and did not act on other alleged rapes, and second grand jury indicted defendant on nine other charges, dismissal of indictments was not required by this section because defendant had not been taken into custody or otherwise “held to answer” on any charge prior to second grand jury. State v. Harwood, 45 Or App 931, 609 P2d 1312 (1980), Sup Ct review denied

 

      This section does not control the right of district attorney to file misdemeanor complaint in district court based on same incident as that giving rise to felony charge from which “not true bill” was returned. State v. Gonzales, 56 Or App 17, 641 P2d 42 (1982), Sup Ct review denied

 

      In exercising discretion to allow or deny resubmission of charges to grand jury, trial court must determine, after considering averred facts, whether resubmission is in interest of justice. State v. Stokes, 350 Or 44, 248 P3d 953 (2011)

 

      132.510 to 132.590

 

LAW REVIEW CITATIONS: 2 EL 230-274 (1971)

 

      132.540

 

NOTES OF DECISIONS

 

      Indictment was not void where it could reasonably be determined from its face that the finding of the indictment occurred between the date of the crime alleged and the date of filing. State v. Perry, 12 Or App 585, 507 P2d 58 (1973), Sup Ct review denied

 

      An indictment in the language of the statute creating the offense is sufficient if it alleges all the elements of the crime that must be proven for conviction, but in situations where statutory language is not precise it must be supplemented so as to leave no doubt as to the exact nature charged. State v. Cannon, 17 Or App 379, 521 P2d 1326 (1974), Sup Ct review denied

 

      Where indictment dated November 7, 1977, alleged criminal conduct committed “through” November 1974, portion of November, 1974, after November 7 was a period within statute of limitations and therefore indictment was timely. State v. Scott, 48 Or App 623, 617 P2d 681 (1980)

 

      Without allegation of facts indicating tolling of period of limitation, it cannot be understood from face of indictment that crime was committed within statute of limitations and it was, therefore, error to deny demurrer. State v. Livingston, 73 Or App 551, 699 P2d 1131 (1985)

 

      Indictment containing two dates on which purportedly returned, one inside and one outside Statute of Limitations, does not satisfy statutory requirement that indictment show prosecution was commenced within period of limitation. State v. Bovee, 76 Or App 572, 710 P2d 786 (1985), Sup Ct review denied

 

      Where proof of previous conviction determines whether offense is felony or misdemeanor, existence of previous conviction constitutes material element of crime charged. State v. Reynolds, 183 Or App 245, 51 P3d 684 (2002), Sup Ct review denied

 

      132.550

 

      See also annotations under ORS 132.520, 132.530 and 132.540 in permanent edition.

 

NOTES OF DECISIONS

 

      A murder indictment charging failure to provide “adequate sustenance, and medical and hygienic care” was sufficiently particular. State v. House, 260 Or 138, 489 P2d 381 (1971)

 

      The names of coparticipants were not necessary to fully inform the defendant of the crime charged. State v. Nussbaum, 261 Or 87, 491 P2d 1013 (1971)

 

      Since the word “theft” is a term of art constituting a single offense committed by the doing of an act that results in the “appropriation” of property of another with the intent to substantially interfere with the property rights of another an indictment alleging that the defendant committed “theft” provides adequate notice of the crime charged. State v. Jim, 13 Or App 201, 508 P2d 462 (1973)

 

      An indictment for theft by receiving in the first degree was insufficient in absence of allegation that the stolen property was received by buying it, or that the stolen property was sold after being received. State v. Dechand, 13 Or App 530, 511 P2d 430 (1973)

 

      An indictment is merely a formal method of initiating criminal proceedings and identifying the crime charged. State v. Shadley, 16 Or App 113, 517 P2d 324 (1973)

 

      Trial courts have little or no discretion to hold indictment insufficient for failure to include information not constituting essential element of crime charged. State v. Shadley, 16 Or App 113, 517 P2d 324 (1973)

 

      Where terms used in indictment are precisely defined in criminal statute, indictment need not explain terms for defendant to be sufficiently informed of nature of charge. State v. Cannon, 17 Or App 379, 521 P2d 1326 (1974), Sup Ct review denied

 

      Indictment charging second degree burglary pursuant to ORS 164.215, which failed to specify crime defendant intended to commit when he allegedly unlawfully entered building, was fatally defective. State v. Sanders, 280 Or 685, 572 P2d 1307 (1977)

 

      Indictment based on felony murder (ORS 163.115) need not include statement that victim was not participant in the crime. State v. Reams, 47 Or App 907, 616 P2d 498 (1980), aff’d on other grounds, 292 Or 1, 636 P2d 913 (1981)

 

      Where indictment for criminal nonsupport (ORS 163.555) identified the crime charged and the applicable statute and alleged that defendant had failed to support his minor children and that he had “unlawfully and knowingly” done so and where defendant needed to look only to the statute to which he was directed to determine that “unlawfully” meant “without lawful excuse,” the indictment was sufficient. State v. Mitchell, 61 Or App 127, 655 P2d 632 (1982), Sup Ct. review denied

 

      Where two counts of indictment did not designate county in which offense was committed, court erred in not granting demurrer. State v. Dunn, 99 Or App 519, 783 P2d 29 (1989), Sup Ct review denied

 

      Indictment need not recite elements of crime to sufficiently identify charged offense. State v. Montez, 309 Or 564, 789 P2d 1352 (1990)

 

      Where indictment for racketeering states particular circumstances of enterprise and of each predicate offense, statutory wording is sufficient statement of nexus between predicate offenses. State v. Fair, 326 Or 485, 953 P2d 383 (1998)

 

      Whether indictment substantially conforming to statutory language is subject to demurrer based on lack of specificity depends on whether discovery is adequate to inform defendant of specific conduct being alleged. State v. Wright, 167 Or App 297, 999 P2d 1220 (2000), modified 169 Or App 78, 7 P3d 738 (2000), Sup Ct review denied

 

      Count may allege venue for offense charged by reference to county designation contained elsewhere in indictment. State v. Huckins, 176 Or App 276, 31 P3d 485 (2001)

 

      Defendant may not, on appeal, raise unpreserved challenge to sufficiency of facts stated in charging instrument. State v. Caldwell, 187 Or App 720, 69 P3d 830 (2003), Sup Ct review denied

 

      Where defendant seeks to require state to make indictment more definite and certain, defendant has means other than demurrer to indictment to satisfy defendant’s right to know theory, facts and circumstances relied upon by state. State v. Hale, 335 Or 612, 75 P3d 448 (2003)

 

COMPLETED CITATIONS: State v. Howard, 6 Or App 230, 486 P2d 1301 (1971), Sup Ct review denied; State v. Schulman, 6 Or App 81, 485 P2d 1252 (1971), Sup Ct review denied; State v. Zimmerlee, 261 Or 49, 492 P2d 795 (1972)

 

      132.557

 

NOTES OF DECISIONS

 

      Where, in addition to elements of crime, state pleads subcategory fact to enhance crime for sentencing purposes, defendant cannot collaterally attack jury verdict regarding fact by challenging imposition of enhanced sentence. State v. Mihm, 157 Or App 262, 972 P2d 890 (1998), Sup Ct review denied

 

      132.560

 

NOTES OF DECISIONS

 

      Charges may be joined when conduct or acts are concatenated in time, place and circumstances and the evidence of one charge would be relevant and admissible without the evidence of the other charges. State v. Darroch, 8 Or App 32, 492 P2d 308 (1971), aff’d264 Or 54, 504 P2d 84; State v. Huennekens, 245 Or 150, 420 P2d 384 (1966); distinguished in State v. Fitzgerald, 267 Or 266, 516 P2d 1280 (1973)

 

      Where a greater offense includes a lesser one, an indictment charging both is not defective. State v. McCauley, 8 Or App 571, 494 P2d 438 (1972), Sup Ct review denied

 

      Where defendant desired to testify on own behalf regarding one case, but wished to invoke right not to testify in other case, joinder was prejudicial to defendant. State v. Eusted, 12 Or App 351, 507 P2d 60 (1973)

 

      Two or more crimes are part of single transaction when: 1) they are closely linked in time, place and circumstances; and 2) evidence of some or all of the elements of one crime would be admissible at trial on other charges because presentation of the evidence concerning the charges on trial would necessarily include evidence of some or all of elements of other crimes. State v. Sanchez, 14 Or App 234, 511 P2d 1231 (1973), Sup Ct review denied

 

      If charges are improperly joined under this section, defendant should demur under ORS 135.630, move for separate trials, move to withdraw improperly joined charges from jury or move for mistrial. State v. Sanchez, 14 Or App 234, 511 P2d 1231 (1973), Sup Ct review denied

 

      If defendant is not prejudiced by misjoinder, his convictions will not be reversed. State v. Fitzgerald, 267 Or 266, 516 P2d 1280 (1973)

 

      The indictment was good against a demurrer but the court erred in not requiring the state to elect when it became apparent that the two offenses were not part of the same transaction. State v. Fitzgerald, 267 Or 266, 516 P2d 1280 (1973); State v. Shields, 280 Or 471, 571 P2d 892 (1977)

 

      Two charges arise out of the same act or transaction if they are so closely linked in time, place and circumstance that a complete account of one charge cannot be related without relating details of the other charge. State v. Fitzgerald, 267 Or 266, 516 P2d 1280 (1973)

 

      Defendant’s motion for separate trials waived any double jeopardy claim. State v. Browne, 16 Or App 177, 517 P2d 1224 (1974)

 

      A single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal, or conviction, under either statute, does not exempt the defendant from prosecution and punishment under the other. State v. Macomber, 18 Or App 163, 524 P2d 574 (1974); State v. Ortega, 20 Or App 345, 531 P2d 756 (1975)

 

      Where two criminal charges may have been improperly joined there is no prejudice if the trial court sentences the defendant only on the greater charge and vacates sentence on the lesser charge. State v. Overcross, 18 Or App 300, 525 P2d 176 (1974), Sup Ct review denied

 

      Defense attorney’s representation to opposing counsel that he would oppose consolidation waived the right to consolidate. State v. Roach, 19 Or App 148, 526 P2d 1402 (1974)

 

      For purposes of charging more than one offense in charging instrument, based on same transaction has same meaning that “same criminal episode” has for barring separate criminal prosecutions under ORS 131.515. State v. Boyd, 271 Or 558, 533 P2d 795 (1975)

 

      When an indictment purports to charge theft in the first degree and alleges sufficient facts to do so, an alternative charge of a lower degree of theft arising from the same conduct may be properly alleged in the same count. State v. Stapleton, 27 Or App 389, 556 P2d 156 (1976)

 

      Demurrer was improperly allowed to indictment which charged conspiracy to commit burglary in first degree in Count I and “as part of the same act and transaction alleged in Count I” conspiracy to commit custodial interference in first degree, because indictment charged two separate and distinct conspiracies. State v. Mathie, 42 Or App 571, 600 P2d 961 (1979), Sup Ct review denied; 54 Or App 232, 634 P2d 799 (1981), Sup Ct review denied

 

      In proceeding against defendant for fraudulent sale of securities, where defendant first sold securities to couple and later sold to couple’s sons, and sons did not talk directly to defendant but relied upon defendant’s representations as related to them by their parents, there was sufficient factual interrelation among charges in three indictments to support consolidation for trial. State v. Parrish, 45 Or App 99, 607 P2d 778 (1980)

 

      Where trial court severs counts in one criminal indictment, there will be separate trials for separate offenses and judgments in each case are final with notice of appeal from one not affecting trial court’s jurisdiction over remaining charges. State v. Smith, 100 Or App 284, 785 P2d 1081 (1990)

 

      Even though this section has no application to traffic complaints, defendant waived objection to that application, and court did not err in holding that joinder of five traffic offenses, all major traffic crimes occurring in same county were of same or similar character. State v. Meyer, 109 Or App 598, 820 P2d 861 (1991), Sup Ct review denied

 

      Denial of motion for severance is reviewed for abuse of discretion, and in order to prevail defendant must show substantial prejudice. State v. Meyer, 109 Or App 598, 820 P2d 861 (1991), Sup Ct review denied

 

      Where defendant committed crime before 1989 amendment to this section but trial took place after amendment became effective, court was correct in applying amended version of statute. State v. Hill, 111 Or App 629, 826 P2d 122 (1992)

 

      Trial court did not abuse its discretion by consolidating three indictments that charged defendant with sexual conduct with male children brought into defendant’s home for adoption. State v. Rood, 118 Or App 480, 848 P2d 128 (1993), Sup Ct review denied

 

      Motion to consolidate does not require that trial court conduct OEC 403 balancing analysis. State v. Parker, 119 Or App 105, 849 P2d 1157 (1993), Sup Ct review denied

 

      Consolidation of indictments for offenses committed in separate criminal episodes does not make sentencing for offenses subject to 200/400 percent limitation on consecutive sentences. State v. Flower, 128 Or App 83, 874 P2d 1359 (1994), Sup Ct review denied

 

      Trial court determination whether joinder of offenses in single trial causes prejudice is subject to appellate review under error of law standard. State v. Miller, 327 Or 622, 969 P2d 1006 (1998)

 

      Acts or transactions are connected together or part of common scheme or plan if interlocking facts create logical relationship between offenses and large area of overlapping proof. State v. Johnson, 199 Or App 305, 111 P3d 784 (2005), Sup Ct review denied

 

      Charges were “connected together” by temporal, spatial and investigatory nexus, as required to permit joinder under this section, where evidence showed that defendant possessed marijuana at same time and in same space that defendant harassed victim, that evidence of both charges was discovered in same police search and that same material witnesses were required to try both offenses. State v. Dewhitt, 276 Or App 373, 368 P3d 27 (2016), Sup Ct review denied

 

      When read with ORS 135.630, this section requires charging instrument that charges multiple crimes to allege basis for joinder in language of this section or with facts that are sufficient to establish compliance with this section. State v. Poston, 277 Or App 137, 370 P3d 904 (2016), Sup Ct review denied

 

      Because state did not use exact joinder language of this section in indictment, language specifically connecting compelling prostitution charge to firearm charges or language specifying common scheme or plan between charges, indictment did not allege facts sufficient to establish compliance with this section. State v. Marks, 286 Or App 775, 400 P3d 951 (2017)

 

      Because court could not determine that evidence of defendant’s prior felony conviction would be admissible at trial in which defendant was charged only with compelling prostitution, or that evidence related to prostitution activities would be admissible at trial in which defendant was charged only with firearm crimes, trial court’s error in disallowing defendant’s demurrer based on improper joinder under this section was not harmless. State v. Marks, 286 Or App 775, 400 P3d 951 (2017)

 

LAW REVIEW CITATIONS: 53 OLR 102, 103, 110, 111 (1973); 55 OLR 368-374 (1976); 66 OLR 953 (1987); 70 OLR 112 (1991)

 

      132.580

 

NOTES OF DECISIONS

 

      When the first indictment was dismissed and a second found, this section does not require naming witnesses before the first grand jury. State v. Fennell, 7 Or App 256, 489 P2d 964 (1971), Sup Ct review denied

 

      Hospital records are not reports and therefore need not be noted on indictment. State v. Gonzalez, 120 Or App 249, 852 P2d 851 (1993), Sup Ct review denied