State v. Gensler, 337 P.3d 890

Defendant was charged in two separate indictments for sexual offenses against two family victims, arising from acts in 1998–2004 and 1998–1999.
The state moved to consolidate the two cases under ORS 132.560; the trial court granted consolidation over defendant’s objection.
Defendant moved to sever under ORS 132.560(3), contending substantial prejudice from joinder, including cross-admissibility and self-incrimination issues.
The trial court denied severance, ruling that prejudice could be mitigated with limiting instructions and trial design; cross-admissibility issues were discussed under OEC 404(3) and Johns framework.
At trial, defendant testified in one case and the state cross-examined accordingly; the state did not rely on evidence from one case to prove the other, and no limiting instructions were given to separate consideration.
Sentencing included $1,300 attorney fees in each case; the court found defendant indigent presently but able to pay after release from prison, creating a prospective ability to pay.

Issue	Plaintiff's Argument	Defendant's Argument	Held
Whether the court erred by denying severance	Tidwell framework; joinder not substantially prejudicial due to simplicity/distinction and potential limiting instructions	Severance required to avoid prejudice from cross-admissibility and self-incrimination risks	No reversible error; no substantial prejudice shown; severance affirmed
Whether Leistiko plain-error instruction was required	Leistiko requires limiting instruction when other-acts evidence is used to prove intent	Instruction should have required precondition before considering other-acts evidence	Not plain error; reasonable dispute about Leistiko’s applicability in this context
Whether attorney-fee awards were improper absent ability to pay evidence	State must show defendant can pay; present inability supported by indigence	Future ability to pay after release supports the awards	No error; record supported future ability to pay and imposed fees

State v. Tidwell, 259 Or App 152 (Or App 2013) (review of severance decision based on record at ruling)
State v. Dimmick, 248 Or App 167 (Or App 2012) (mutual admissibility or sufficiency of separation to mitigate joinder risks)
State v. Miller, 327 Or 622 (Or 1998) (noncharacter purpose permits admission of separate-incident evidence in joined trials)
State v. Johns, 301 Or 535 (Or 1986) (framework for analyzing cross-admissibility under OEC 404 and 403)
State v. Leistiko, 352 Or 172 (Or 2012) (limits on using uncharged conduct to prove intent unless preconditions are met)
State v. Vanornum, 354 Or 614 (Or 2013) (instructional plain-error review governed by Brown and Ailes)
State v. Kanuch, 231 Or App 20 (Or App 2009) (burden on state to prove defendant can pay costs)