State v. Buyes, 382 P.3d 562

Background

Defendant was charged with seven counts: four counts (1995–1997) alleging sexual offenses against nephew K and three counts (2011–2012) alleging sexual offenses against nephew J. Count 7 was dismissed at close of evidence.
Defendant moved to sever the K-related counts from the J-related counts, arguing risk of juror confusion and cross-contamination because the prosecutor intended to present a cohesive theory intertwining evidence.
The prosecutor argued joinder was proper because both victims were underage family members and the alleged conduct was similar across victims.
The trial court denied severance, finding the offenses were similar in nature (grooming of young male family members), chronology and disclosure were interrelated, and limits on jury consideration could manage prejudice.
The jury received limiting instructions and count-specific descriptions on the verdict form; verdict required at least 10 jurors to agree. Jury convicted on Counts 1–5, acquitted on Count 6.
On appeal defendant argued severance error under ORS 132.560 and a due-process claim and also argued loss of OEC 404(3) protection; the appellate court affirmed.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether counts were of "same or similar character" for permissive joinder (ORS 132.560(1)(b)(A))	State: offenses were similar—both involved sexual abuse of underage family members and similar conduct—so joinder appropriate	Defendant: offenses were not of same or similar character because victims, dates, and details differed substantially	Court: Joinder proper — conduct sufficiently similar (targeting young male relatives) despite temporal gap
Whether joinder caused "substantial prejudice" requiring severance (ORS 132.560(3))	State: limiting instructions and separate descriptions on the verdict form mitigated prejudice; evidence was distinct and manageable	Defendant: joinder risked jury confusion and cross-contamination; evidence was not cross-admissible so prejudice was likely	Court: Defendant failed to show case-specific substantial prejudice; limiting instructions and distinct, uncomplicated evidence cured risk; acquittal on one count supported lack of prejudice
Whether joinder deprived defendant of OEC 404(3) protection against "other bad acts" evidence	State: when charges are lawfully joined, evidence regarding each charged offense is admissible for non-character purposes	Defendant: joinder allowed admission of impermissible propensity evidence	Court: Followed Miller — evidence admissible for nonpropensity purposes when properly joined; OEC 404(3) argument foreclosed
Whether the denial of severance violated federal due process	State: unpreserved (no developed federal argument below)	Defendant: joinder rendered trial fundamentally unfair under Fourteenth Amendment	Court: Claim unpreserved; appellate court declined to address federal due-process argument

Key Cases Cited

State v. Tidwell, 259 Or. App. 152 (discusses record-limited review of severance ruling)
State v. Dewhitt, 276 Or. App. 373 (framework for joinder/severance analysis under ORS 132.560)
State v. Norkeveck, 214 Or. App. 553 (joining sexual-offense charges as similar character)
State v. Williams, 272 Or. App. 770 (joinder ok where evidence for each victim was simple and distinct)
State v. Crummett, 274 Or. App. 618 (burden on defendant to show substantial prejudice from joinder)
State v. McMinn, 145 Or. App. 104 (denial of severance upheld where evidence was uncomplicated)
State v. Meyer, 109 Or. App. 598 (temporal separation does not defeat similar character for joinder)
State v. Miller, 327 Or. 622 (lawful joinder permits admission of evidence for nonpropensity purposes under OEC 404(3))
State v. Amaya, 336 Or. 616 (failure to develop federal constitutional argument below forfeits appellate review)