State v. Austin, 360 P.3d 603

Defendant was convicted of reckless driving (ORS 811.140) and DUII (ORS 813.010).
Defendant sought the court's consent to selectively waive a jury trial on the reckless driving count; the court refused without stated reasoning.
The State opposed waiver, citing judicial economy and the jury’s ability to decide counts, while the defense argued the waiver would prevent jury confusion and protect rights.
Evidence included defendant’s prior DUII diversion participation and a victim-impact panel, admitted to prove recklessness but limited by a jury instruction restricting its use to recklessness.
The trial court gave a limiting instruction; after Harrell/Wilson (decided post-trial), the court remanded to reconsider consent under that standard; the DUII conviction remained affirmed due to limiting instruction.
On appeal, this court vacated and remanded the reckless driving conviction for reconsideration pursuant to Harrell/Wilson; otherwise, the DUII conviction was affirmed.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the trial court abused discretion denying consent to jury waiver under Harrell/Wilson	State urges deference to trial court under economic considerations	Defendant argues no permissible basis supported denial	Remand for reconsideration under Harrell/Wilson; discretionary error cannot be shown from record
Whether the DUII conviction should be reversed due to joinder with reckless driving evidence	State contends no substantial prejudice and limited impact due to instruction	Defendant argues evidence was irrelevant to DUII and could prejudice verdict	No reversal; DUII affirmed given limiting instruction and lack of severance issue on appeal
Whether limiting instruction adequately protected defendant’s rights if waiver granted	Record supports that instruction insulated DUII from recklessness evidence	Potential juror prejudice cannot be ruled out	Court held instruction effective; no automatic reversal of DUII based on joinder

State v. Harrell/Wilson, 353 Or 247 (2013) (establishes right to jury waiver and constraints on court consent; remand to reconsider waiver with protection of rights and judicial economy)
State v. Baker, 328 Or 355 (1999) (consent to waiver cannot be used to promote state preference; defendant's rights paramount)
State v. Davis, 336 Or 19 (2003) (harmless-error-type framework for evidentiary difficulties; not controlling here but cited for prejudice considerations)
State v. Bruning, 180 Or App 247 (2002) (joinder/severance context; informs comparison though posture differs)
State v. Leistiko, 352 Or 172 (2012) (limiting instructions and juror adherence to narrowed purposes)
State v. Barone, 329 Or 210 (1999) (limiting instruction as a tool to blunt prejudice)