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.
