State v. Campbell

No. 53 October 17, 2013 375

IN THE SUPREME COURT OF THE

STATE OF OREGON

STATE OF OREGON,

Respondent on Review,

v.

HAROLD LEE CAMPBELL,

Petitioner on Review.

(CC F16027; CA A143237; SC S060046)

On review from the Court of Appeals.*

Argued and submitted November 5, 2012; resubmitted

January 7, 2013.

Susan Fair Drake, Senior Deputy Public Defender, Salem,

argued the cause and filed the briefs for petitioner on review.

With her on the briefs was Peter Gartlan, Chief Defender,

Office of Public Defense Services.

Rebecca M. Johansen, Assistant Attorney General,

Salem, argued the cause and filed the brief for respondent

on review. With her on the brief were Ellen F. Rosenblum,

Attorney General, and Anna M. Joyce, Solicitor General.

Before Balmer, Chief Justice, and Kistler, Walters,

Linder, Landau, and Baldwin, Justices.**

PER CURIAM

The petition for review is dismissed as improvidently

allowed.

Walters, J, concurred and filed an opinion.

______________

**  Appeal from Union County Circuit Court, Phillip A. Mendiguren, Judge.

247 Or App 353, 271 P3d 154 (2011).

**  Brewer, J., did not participate in the consideration or decision of this case.

376 State v. Campbell

PER CURIAM

The petition for review is dismissed as improvidently

allowed.

WALTERS, J., concurring.

This court allowed review in this criminal case to

decide whether defendant’s prosecution for possession of a

controlled substance was barred under Oregon’s former

jeopardy statute—ORS 131.515(2). Defendant originally

was charged in the same indictment with driving under the

influence of intoxicants (DUII), reckless driving, and two

counts of possession of a controlled substance. When defen-

dant agreed to plead guilty to DUII and reckless driving, the

possession charges were dismissed with defendant’s agree-

ment that the state could refile them if defendant violated

the terms of his probation. However, defendant reserved his

right to raise a double jeopardy objection to such a subse-

quent prosecution. Defendant did later violate the terms

of his probation, and the state refiled one of the possession

charges. Thus, what was originally intended as one consoli-

dated prosecution on all charges proceeded as two successive

prosecutions. This court has determined that those facts are

unlikely to arise again in the future and that review was

improvidently allowed. I concur in that decision. However,

having thought about the issues, I write to alert the bench

and bar to the correct standard for deciding when joinder

is compulsory under ORS 131.515(2) and to raise an issue

about the application of that standard for the legislature’s

consideration.

Stated simply, the question that this case presents is

whether a defendant can be successively prosecuted for DUII

and drug possession when the driving and the possession

occur simultaneously. The statute that controls the answer

to that question is ORS 131.515(2), which provides:

“No person shall be separately prosecuted for two or

more offenses based upon the same criminal episode, if the

several offenses are reasonably known to the appropriate

prosecutor at the time of commencement of the first prose-

cution and establish proper venue in a single court.”

(Emphasis added.)

Cite as 354 Or 375 (2013) 377

In this case, the trial court concluded that defen-

dant’s alleged drug possession was not part of the same

“criminal episode” as his DUII, because “the elements are

not the same.” In resting its ruling on that reasoning, the

trial court erred.

In State v. Brown, 262 Or 442, 497 P2d 1191 (1972),

this court considered whether possession of a concealed

weapon and felon in possession of a firearm were the same

“offense” for purposes of the constitutional double jeopardy

provision—Article I, section 12, of the Oregon Constitution.1

The court held that, even though the two crimes had dif-

ferent elements, they constituted the same “offense.” Thus,

the fact that two charges have different elements does not

determine whether they constitute the same “offense.” ORS

131.515(2) assumes that a defendant has been charged with

at least two offenses and precludes separate prosecution,

not when the elements or offense are the same, but when

separate offenses are based on the same “criminal episode.”

Consequently, for purposes of ORS 131.515(2), the correct

inquiry is not whether the elements of two offenses are the

same, but whether the offenses are based on the same “crim-

inal episode.”

ORS 131.505(4) defines the phrase “criminal episode,”

as used in ORS 131.515(2), to mean:

“continuous and uninterrupted conduct that establishes at

least one offense and is so joined in time, place and circum-

stances that such conduct is directed to the accomplishment

of a single criminal objective.”

(Emphasis added). In this court, the parties argued, appro-

priately, about the application of that definition to the facts

of this case. Defendant argued that the simultaneity of the

acts of driving and drug possession demonstrated that the

offenses were based on the same “criminal episode” and that

the charges must be joined in the same prosecution. The

state argued that the charges could be separately prosecuted

1

Article I, section 12, provides:

“No person shall be put in jeopardy twice for the same offence [sic], nor be

compelled in any criminal prosecution to testify against himself.”

378 State v. Campbell

because defendant did not demonstrate that the alleged

unlawful driving and drug possession were “directed to

the accomplishment of a single criminal objective,” as ORS

131.505(4) requires.

The legislative history, set out in the Commentary

to the Proposed Oregon Criminal Procedure Code, includes

a lengthy discussion of the role that the requirement of a

“single criminal objective” plays and states:

“The definition of ‘criminal episode’ recognizes that a

single course of criminal conduct can create different harms

and violate different statutes but still be closely related in

time, place and circumstances.

“The criterion of ‘single criminal objective’ is one part of

the test[.] * * * The determination of whether the conduct is

‘directed to the accomplishment of a single criminal objec-

tive’ is an objective determination. In other words, the

subjective intent of the person should not be considered in

determining whether or not a certain offense was part of the

criminal episode. Instead, the determination would depend

upon what reasonably appeared under the circumstances to

be within a single criminal objective.”

Commentary to Criminal Law Revision Commission Proposed

Oregon Criminal Procedure Code, Final Draft and Report

(Commentary) § 26, 17 (Nov 1972) (emphases added).

The Commentary goes on to describe various situa-

tions illustrating those principles. It explains, for example,

that, if a person committed multiple burglaries on the same

evening, then each burglary would be a separate criminal

episode, because each was committed at a different time and

place. Id. By contrast, the Commentary states that a defen-

dant who enters a bank, confronts a teller and manager

with a gun, demands money, ties up the manager, takes the

teller as a hostage, and, as he flees the bank, fatally wounds

the bank guard who attempts to prevent the escape, com-

mits those crimes in one criminal episode; the defendant’s

single criminal objective is to successfully commit the bank

robbery without capture. Id. However, the Commentary also

observes that, if the defendant forces the teller into the back

room before fleeing and rapes her, it is less clear that the

robbery and rape are directed at the same criminal objective

Cite as 354 Or 375 (2013) 379

and, therefore, part of the same criminal episode. The rob-

bery was already completed before the rape took place, and

thus it would appear that the defendant had two separate

objectives—robbery and rape. Id. at 17-18.

In another situation described in the Commentary, a

defendant steals a car at 9:00 p.m., robs a market at 9:30 p.m.,

and flees in the stolen car. The Commentary states that

defendant’s crimes would be part of one criminal episode

consisting of the crimes of robbery and theft. But, if a police

officer later sees the defendant entering a tavern at 11:00 p.m.,

attempts to arrest the defendant, and is wounded by the

defendant in an exchange of gunfire, then the defendant’s

crimes would compose two criminal episodes: one consisting

of the crimes of robbery and theft, and the other consisting

of the crimes of resisting arrest and assault. Id. at 18.

What I take from those examples is that, to be

directed to the accomplishment of a single criminal objec-

tive, the two offenses need not be similar, need not have the

same elements, need not be proved by the same evidence,

and need not share the same statutory intent. Rather, they

may be as dissimilar as robbery and murder or as robbery

and rape. It also appears that a “single criminal objective” is

not a narrow concept: Two or more offenses may be directed

toward more than one criminal objective and still be part of

the same criminal episode, as long as they reasonably can

be seen to be directed toward a single overarching criminal

objective.

Those examples from the Commentary are helpful

in assessing how closely distinct criminal events must be

connected in time and place before they can be said to share

a criminal objective. They are not as helpful in resolving the

question that this case poses, however. The only example

included in the Commentary that addresses drug possession

that occurs simultaneously with other criminal conduct is

an example of a person who both sells and possesses drugs.

The Commentary states that, when sale and possession

occur simultaneously, the resulting charges must be joined.

Commentary § 26 at 17. That example could be understood

to require joinder for either of two reasons. It might indicate

380 State v. Campbell

an assumption that, to sell drugs, a defendant also must pos-

sess them, which might, therefore, permit a conclusion that

the defendant’s conduct was directed toward a single over-

arching criminal objective to engage in the sale of illegal

drugs. That assumption may not be correct, however, and,

alternatively, that example could be understood to illustrate

the effect of simultaneity on the analysis: When a defendant

simultaneously sells and possesses drugs, the defendant

has a criminal objective to engage in the two acts simulta-

neously. The Commentary does not disclose its reasoning.

However, the example of the simultaneous possession and

sale of drugs evidences an intent to require joinder of such

charges.

The circumstance that this case presents is similar,

but, depending on how the Commentary is understood, may

call for a different result. When a defendant drives under

the influence of a controlled substance, that substance may

or may not be illegal drugs and the defendant may or may

not need to possess the drugs to drive under their influence.

Thus, if a defendant drives and simultaneously possesses

illegal drugs, the drugs may or may not have any necessary

connection to the unlawful driving. If the legislature intends

the simultaneity of a defendant’s driving and drug pos-

session to establish that the defendant’s conduct is directed

toward the accomplishment of a single criminal objective,

then it intends that the two acts are based on the same crim-

inal episode and must be joined. However, if the legislature

means to impose a requirement that, to share a criminal

objective, the possession of the drugs must be necessary to

accomplish the unlawful driving, then the two acts may or

may not be part of the same criminal episode, depending

on the particular facts presented. The problem is especially

difficult because the Commentary specifies that a particular

defendant’s intent is not determinative: The analysis is an

objective one.

This court considered a similar problem in State

v. Boyd, 271 Or 558, 533 P2d 795 (1975), the only case in

which it has construed ORS 131.515(2). In Boyd, the police

had probable cause to believe that the defendant’s husband

had been involved in a burglary and obtained a warrant to

Cite as 354 Or 375 (2013) 381

search the defendant’s home for evidence of that crime. In

the ensuing search, the officers found, among other things,

a quantity of amphetamine tablets, some marijuana, and a

television set that had been stolen several months earlier.

The state first indicted the defendant for theft, committed

by retaining and concealing the television, and then later

indicted her for possession of the amphetamine tablets.

When the jury acquitted the defendant on the theft charge,

the defendant moved to dismiss the drug indictment on for-

mer jeopardy grounds. The trial court granted the motion

and the Court of Appeals affirmed.

On review, this court considered whether the theft

and the drug charges were based on the “same criminal

episode” under ORS 131.515(2). The court interpreted ORS

131.515(2) to require joinder in the same circumstances in

which joinder is statutorily permitted. The permissive joinder

statute in effect at that time—ORS 132.560(2) (1975)—

permitted joinder when charges were based on “the same

act or transaction.”2 The court had interpreted the permis-

sive joinder statute in State v. Fitzgerald, 267 Or 266, 516

P2d 1280 (1973), and held there that,

“the 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.”

2

ORS 132.560(2) (1975) provided:

“When there are several charges against any person or persons for the same

act or transaction, instead of having several indictments, the whole may be

joined in one indictment in several counts; and if two or more indictments are

found in such cases, the court may order them to be consolidated.”

ORS 132.560 has been amended over the years in ways that do not affect my

analysis. The concept underlying ORS 132.560(2) (1975) is now found in ORS

132.560(1)(b)(B), which still refers to crimes based on the “same act or transaction”

and provides:

“(1)  A charging instrument must charge but one offense, and in one form

only, except that:

“* * * * *

“(b)  Two or more offenses may be charged in the same charging instrument

in a separate count for each offense if the offenses charged are alleged to have

been committed by the same person or persons and are:

“* * * * *

“(B)  Based on the same act or transaction[.]”

382 State v. Campbell

Id. at 273. The court in Boyd adopted that same standard

for determining whether charges must be joined under ORS

131.515(2) and explained:

“We are unable to conceive of ‘continuous and uninterrupted

conduct * * * so joined in time, place and circumstance’ that

such conduct is directed to the accomplishment of a single

criminal objective, which at the same time would not fulfill

the test of Fitzgerald and be ‘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.’ * * * We hold, therefore, that ‘same criminal episode’

in ORS 131.515(2) is synonymous with same transaction in

ORS 132.560(2)[1975].”

Boyd, 271 Or at 565-66 (first ellipsis in original).

However, the court concluded, that test did not resolve

the issue in the case then before the court. With respect to

the offenses at issue, the court determined, criminal culpa-

bility was based not on a series of “relatable events,” but on

a “single condition”—the defendant’s possession of different

items of contraband at one time and in one place:

“The interrelationship deemed essential [to determining

whether multiple offenses are part of the same criminal

episode] is lacking in the present case because the possession

of the separate items of property do not constitute relatable

events but rather a single condition characterized by the

manner in which the items are held by the accused. *  * *

The charge is a single charge of illegal possession of goods

at one time and place.”

Id. at 570 (emphases in original). Moreover, the court explained,

when the condition is possession of contraband, it does not

matter that the defendant may have obtained the various

items at different times and places:

“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 rea-

son other than harassment of the defendant for the state to

divide the condition of possession into parts and prosecute

separately on each.”

Cite as 354 Or 375 (2013) 383

Id. at 571. The court ultimately held that, because the defen-

dant had simultaneously possessed the several items of con-

traband, ORS 131.515(2) precluded successive prosecutions.

The theft and possession charges had to be joined.

Although the court in Boyd may have been mistaken

in so closely equating the compulsory and permissive joinder

statutes and may not have sufficiently considered the defi-

nition of “criminal episode” as used in ORS 131.515(2), and

particularly the role of the “single criminal objective” in that

definition, I think that the court reached the correct result. I

also think that that same result should obtain here. When a

defendant drives unlawfully and, at the same time, illegally

possesses contraband, there is only one criminal “episode.”

Both unlawful acts occur at the same time and certainly

could be understood to share the same criminal objective—

to drive while in possession of contraband.

In this case, the state initially joined the DUII and

drug possession charges. In doing so, it implicitly recognized

that, in the ordinary case, there is no reason to successively

prosecute such charges. To eliminate any doubt that that is

what the legislature intended to require or that this court’s

decision in Boyd is controlling, the legislature may wish to

explicitly address the issue.