State v. Harrington

Court of Appeals of the State of Oregon · 2025 · Criminal Law

Criminal Lawjoinder and consolidationharmless errormergerplain errorORS 132.560ORS 161.067harmless error

Facts

Defendant was charged in two separate indictments involving his then-girlfriend, one arising from a 2019 incident and one from a 2020 incident. Over defendant's objection, the trial court consolidated the indictments and tried them together to the court after defendant waived a jury. The court acquitted defendant on the 2019 strangulation charges, convicted him on several 2020 charges, and expressly stated that the 2019 incident was inadmissible prior bad act evidence for the 2020 charges and that it did not consider that incident in deciding guilt on the 2020 charges. The rape and second-degree sexual abuse convictions both arose from a single instance of sexual intercourse with the same victim.

Issue

First, whether any error in consolidating the two indictments required reversal. Second, whether the trial court plainly erred by failing to merge the guilty verdicts for first-degree rape and second-degree sexual abuse when both counts were based on the same conduct and victim.

Rule

A consolidation or misjoinder error is harmless if there is little likelihood that it affected the verdict; in assessing harmlessness, the court considers whether the joinder led to the admission of evidence that would not otherwise have been admissible and whether that evidence affected the verdict. Under ORS 161.067, where first-degree rape and second-degree sexual abuse are based on the same act of sexual intercourse with the same victim as pleaded in this case, the verdicts merge, and failure to merge is plain error when the error is obvious on the record.

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In Portland, Omar Vega was charged in two indictments involving his former partner, Nina Lowe: a 2021 assault count and a 2023 rape count. Over objection, the court consolidated the cases for a bench trial. The judge acquitted Omar on the 2021 count and, when announcing the verdict, stated that the 2021 incident would have been inadmissible as prior bad act evidence on the 2023 charge and was not considered in deciding the 2023 charge.

If Omar argues on appeal that consolidation was erroneous, what is the strongest response under the governing rule?

Explanation. The majority held that even assuming consolidation was erroneous, reversal is not required if there is little likelihood the joinder affected the verdict. In a bench trial, the appellate court looked to whether joinder caused admission of evidence that otherwise would not have come in and whether that evidence affected the verdict. Where the judge acquits on the earlier charges and expressly states that the earlier incident was inadmissible prior bad act evidence and was not considered on the later charges, any error is harmless. (Derived from State v. Harrington (n.d.).)