In cases where crimes were "committed and investigated at different times and places[, the court examines whether] the later occurring offenses were clearly precipitated by an earlier offense, [thus] rendering evidence of the initial offense ‘necessary to prove * * * and to explain the context and motivation for the [later occurring] events.’ " State v. Strouse , 276 Or. App. 392, 402, 366 P.3d 1185, rev. den. , 360 Or. 236, 381 P.3d 830 (2016) (quoting State v. Wittwer , 214 Or. App. 459, 463, 166 P.3d 564 (2007) (third brackets in Wittwer ) ).
We recently explained that,"[u]nder McCrorey , and our recent decision in State v. Strouse , 276 Or. App. 392, 366 P.3d 1185 (2016), evidence that a person has lied in response to police questioning in the course of an investigation is not enough to convict the person of initiating a false report. McCrorey , 216 Or.App. at 306 ; see also Strouse , 276 Or.App. at 404 . The evidence must show more; it must
ORS 162.375. Under McCrorey, and our recent decision in State v. Strouse , 276 Or.App. 392, 366 P.3d 1185 (2016), evidence that a person has lied in response to police questioning in the course of an investigation is not enough to convict the person of initiating a false report. McCrorey , 216 Or.App. at 306, 172 P.3d 271 ; see alsoStrouse , 276 Or.App. at 404, 366 P.3d 1185.
On the other hand, in State v. Taylor , 364 Or. 364, 374, 434 P.3d 331 (2019), the Supreme Court concluded that offenses were connected together or constituting parts of a common scheme or plan where the defendant planned and committed two similar bank robberies and also committed kidnapping and murder in furtherance of the second robbery. In State v. Strouse , 276 Or App 392, 402, 366 P.3d 1185, rev. den , 360 Or. 236, 381 P.3d 830 (2016), unlawful possession of marijuana was properly joined with firearm theft offenses because evidence of both crimes was discovered in the same search, and that search precipitated other criminal conduct also charged in the same indictment. Likewise, in Dewhitt , charges of harassment and possession of marijuana could be joined because the criminal conduct occurred and was investigated concurrently, so they were linked temporally and spatially and had substantial overlapping proof.
"If a defendant challenges the legality of joinder (that is, raises the issue of misjoinder), the court must first determine whether the charges meet any of the independently sufficient bases for joinder listed in ORS 132.560(1)(b)(A) to (C)." State v. Strouse , 276 Or. App. 392, 400, 366 P.3d 1185, rev. den. , 360 Or. 236, 381 P.3d 830 (2016). We broadly construe the joinder statute in favor of initial joinder.
Id. at 154, 313 P.3d 345. The probable effectiveness of limiting instructions to the jury is relevant to whether the defendant has established substantial prejudice. Id. at 155, 313 P.3d 345 ; see also State v. Strouse , 276 Or. App. 392, 403-04, 366 P.3d 1185, rev. den. , 360 Or. 236, 381 P.3d 830 (2016) (noting that defendant failed to "explain why other measures such as limiting instructions would be insufficient to mitigate any putative prejudice"). Whether evidence pertaining to multiple charges "is sufficiently simple and distinct to mitigate the dangers created by joinder" is also relevant. Luers , 211 Or. App. at 43-44, 153 P.3d 688.
Id. at 522, 280 P.3d 1046. Moreover, this is not a case where correction of the error would undermine the important policies behind the preservation rule because it is not a case where, if the error had been timely raised, the state could have reopened its case and corrected the deficiency in its proof, id. at 523-24, 280 P.3d 1046, and defendant gained no strategic advantage from failing to act. State v. Strouse, 276 Or. App. 392, 404-05, 366 P.3d 1185, rev. den., 360 Or. 236, 381 P.3d 830 (2016). Accordingly, exercising our discretion to correct the error will not undermine the preservation rule's policy interest in the "full development of the record."
Thus, the harassment and marijuana charges had a temporal and a spatial connection, and were additionally materially linked by the fact that evidence of both charges was discovered in the same search. SeeState v. Strouse, 276 Or App 392, 402-03, ___ P3d ___ (2016) (joinder of theft and marijuana-related charges was proper where, inter alia, evidence linking the defendant to stolen property from an earlier burglary was found at the same time and place as evidence of the marijuana-related offenses); cf. United States v. Montes-Cardenas, 746 F2d 771, 776-77 (11th Cir 1984) (holding that drug and weapon offenses may be joined because police discovered evidence of both in the same search, and because there "was a significant link in the government's proof" of both sets of charges); United States v. Park, 531 F2d 754, 760-61 (5th Cir 1976) (gun and drug charges could be joined for trial because the offenses occurred simultaneously and evidence of each was discovered in the same search).