Summary
reviewing for legal error a trial court's determination that a defendant failed to established substantial prejudice when the trial court denied his motion to sever charges
Summary of this case from In re A.E.P.Opinion
104249 A150680.
08-12-2015
STATE of Oregon, Plaintiff–Respondent, v. Ian Michael WILLIAMS, Defendant–Appellant.
Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant. Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael J. Slauson, Assistant Attorney General, filed the brief for respondent.
Peter Gartlan, Chief Defender, and Jedediah Peterson, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Michael J. Slauson, Assistant Attorney General, filed the brief for respondent.
Before ORTEGA, Presiding Judge, and DeVORE, Judge, and GARRETT, Judge.
Opinion
GARRETT, J.Defendant was convicted of one count of sexual abuse in the second degree, ORS 163.425, one count of sexual abuse in the third degree, ORS 163.415, and one count of rape in the first degree, ORS 163.375. On appeal, defendant raises five assignments of error. We reject four of those assignments without further discussion and write only to address the first assignment of error, which contends that the trial court erred in denying defendant's motion to sever the charges for trial. For the reasons that follow, we conclude that the trial court did not err, and we affirm.
Defendant was charged in a single indictment with 11 different crimes against four victims, including, as pertinent on appeal, crimes against K and J that took place separately, several months apart, in different locations. Before trial, defendant filed a motion to sever pursuant to ORS 132.560. In his written motion, defendant argued, inter alia, that he would be substantially prejudiced by joinder because there was no “mutually admissible” evidence regarding the charges pertaining to K and J. The state responded that the evidence of defendant's abuse of one of the victims would, in fact, be relevant as to the other victim. At the hearing on defendant's motion, defendant acknowledged that the charges involved the “same class of victim” and that he would be “hard-pressed to argue that [the criteria under ORS 132.560 haven't] been met.” The trial court denied the motion. On appeal, defendant argues that the evidence pertinent to K was “not cross-admissible for any purpose” as to the charges regarding J, and vice versa.
We conclude that the trial court did not err in denying defendant's motion to sever his charges for trial. “Under ORS 132.560(3), charging instruments that have been consolidated may be severed upon motion if the defendant is ‘substantially prejudiced by a joinder of offenses.’ ” State v. Gensler, 266 Or.App. 1, 8, 337 P.3d 890 (2014), rev. den., 356 Or. 690, 344 P.3d 1112 (2015) (quoting statute). We review for legal error the trial court's determination that defendant failed to demonstrate “substantial prejudice.” State v. Luers, 211 Or.App. 34, 43, 153 P.3d 688, adh'd to as modified on recons., 213 Or.App. 389, 160 P.3d 1013 (2007) (brackets omitted). The trial court's ultimate decision whether to sever charges, as opposed to ordering some other remedy, is reviewed for abuse of discretion. State v. Miller, 327 Or. 622, 629, 969 P.2d 1006 (1998). We conduct our review based on the record at the time of the court's ruling on the motion to sever. State v. Tidwell, 259 Or.App. 152, 156, 313 P.3d 345 (2013).
Here, even assuming that defendant is correct that the evidence of his conduct as to one victim was not cross-admissible concerning the other victim, that circumstance is insufficient to establish substantial prejudice resulting from joinder. Miller, 327 Or. at 631, 969 P.2d 1006 (“[T]he question of prejudice under ORS 132.560(3) is separate from, and is not necessarily controlled by, the question of the admissibility of other crimes.”). We have repeatedly affirmed trial courts' denials of motions to sever offenses, notwithstanding mutual inadmissibility of evidence, where the evidence in each case was “sufficiently simple and distinct to mitigate the dangers created by joinder.” Gensler, 266 Or.App. at 9, 337 P.3d 890 (reasoning that the charges “arose from different incidents that occurred at different times and places and involved different victims”) (quoting State v. Dimmick, 248 Or.App. 167, 179, 273 P.3d 212 (2012) ); Tidwell, 259 Or.App. at 155, 313 P.3d 345 (“Both charges involved discrete incidents on separate days, and the evidence in each case was uncomplicated and supported by separate witnesses.”); Dimmick, 248 Or.App. at 179, 273 P.3d 212 (four incidents on four different days).
The record before the trial court at the time of the motion to sever indicated that defendant was charged with sex crimes against different victims, in different locations, with distinct factual scenarios, that were separated by several months. Under those circumstances, the allegations pertinent to each charge were “sufficiently simple and distinct” so that the trial court could permissibly conclude that defendant would not be substantially prejudiced by joinder. Gensler, 266 Or.App. at 9, 337 P.3d 890 ; Tidwell, 259 Or.App. at 155, 313 P.3d 345.
Defendant further contends that he suffered substantial prejudice because the trial court did nothing to “mitigate” the prejudice he suffered as a result of the joinder of his criminal charges. The record does not indicate, however, that defendant ever requested a limiting instruction, nor does defendant cite any authority to the effect that the trial court was obliged sua sponte to issue such an instruction.
For the foregoing reasons, the trial court did not err in denying defendant's motion to sever.
Affirmed.