State v. DelaneyState v. Delaney
Defendant was charged with multiple sex offenses arising from two separate incidents, each involving a different victim. Before trial, defendant moved to sever the charges relating to each victim, arguing under
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
On review from the Court of Appeals.*
Andrew D. Robinson, Deputy Public Defender, Office of Public Defense Services, Salem, argued the cause and filed the briefs for petitioner on review. Also on the briefs was Ernest G. Lannet, Chief Defender.
Jonathan N. Schildt, Assistant Attorney General, Salem, argued the cause and filed the brief for respondent on review. Also on the brief were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.
Before Walters, Chief Justice, and Balmer, Flynn, Duncan, Nelson, Garrett, Justices, and Linder, Senior Judge, Justice pro tempore.**
FLYNN, J.
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.
FLYNN,
Defendant appeals his convictions on multiple sex offenses arising from two separate incidents, each involving a different victim. He challenges the trial court‘s refusal to sever the counts involving the first incident from the counts involving the second incident. At issue is the proper application of
As we will explain, a defendant seeking severance under
I. FACTS
The state charged defendant with six sex offenses in a single indictment. The first three counts—first-degree rape (
The trial court held a hearing and asked the state to describe the facts of both incidents in the light most favorable to the state.1 The state first summarized the evidence that it expected to offer with respect to the 2014 incident involving M. The state explained that M met defendant through mutual friends and later contacted defendant so that defendant could help M sell her car. According to the state, M would testify that she went to a property in Estacada, where defendant kept a small trailer and a boat. M later accepted defendant‘s suggestion that she take a nap in his boat and continued sleeping on the boat when defendant told her that he was taking it out onto the river.
When M later woke up, her pants were down, and defendant was raping her. M did not react because she was afraid of defendant, and they were alone on the river. M pretended to sleep until after defendant finished, and then M pretended to wake up. Defendant and M later returned to shore, and M did not have any other significant contact with defendant. M delayed reporting the incident for over two years. According to the state, M‘s explanation for why she ultimately came forward was that she had “heard allegedly that he‘s done similar things to other women.”
The state then summarized the evidence relating to L, including L‘s expected testimony about defendant sexually assaulting her in 2016. The state explained that L was acquainted with defendant and was walking alone when defendant pulled over and offered her a ride to her destination. When L accepted the ride, defendant instead drove L to the property in Estacada after telling L that he needed to “go up there” and “do a few things.” Although L initially refused to go into the trailer, defendant told her that he would be at least an hour, and L agreed to wait inside defendant‘s trailer.
Later, defendant told L that he wanted her to perform oral sex. Defendant pointed a firearm at L and hit her in the head, and she acquiesced to performing oral sex. Afterward, defendant would not let L leave his trailer to go to the bathroom, which was outside, without supervising her. When defendant later fell asleep, L fled from the trailer, leaving behind her purse. She ran toward town until she encountered an older man and told him that she had just been sexually assaulted and needed to make a phone call. Either L or the man contacted the police that day, and L later provided a statement describing the assault. As part of L‘s report, law enforcement took photographs
Based on the state‘s description of the evidence, defendant argued that he would be substantially prejudiced by the joinder of charges arising from the two incidents and that the court should exercise its discretion to sever the charges. Specifically, defendant argued that he would be prejudiced by “cross-pollination of prior bad acts, as motivation,” if each witness were to testify that she “came forward because [she] heard about all these prior bad acts that he did on these other women.” And he argued that the prejudice could not be adequately addressed by a jury instruction.
After defendant‘s argument, the prosecutor consulted police reports that described the previous statements made by M and L and offered more background “to clarify just a couple things with regard to the facts.” The state then explained that the victims reported defendant‘s conduct because they were concerned that defendant would harm other women in the future: “I mean, [M and L] do talk about the concerns that the defendant, you know, may do this again in the future. And so that is part of the reason that they came forward.” The prosecutor further explained that M had told law enforcement that she wanted to report defendant‘s assault because she had heard that defendant was dating her friend and M was concerned that defendant might harm that friend.2
The trial court denied defendant‘s motion to sever, and the case proceeded to trial. The trial testimony from M and L described the alleged attacks much as the prosecutor‘s summary had predicted, but neither witness testified that she had heard about defendant committing bad acts against other women.3 Ultimately, the jury found defendant guilty of all the charged offenses.
Defendant appealed, challenging the trial court‘s denial of his motion to sever, and the Court of Appeals affirmed in a written decision. State v. Delaney, 314 Or App 561, 498 P3d 315 (2021). The court concluded that defendant was not substantially prejudiced, because the evidence of defendant‘s conduct towards M and L “was sufficiently simple and distinct to mitigate the dangers created by a joint trial.” Id. at 571. In other words, the court concluded that, because the charges “arose from different incidents that occurred at different times and places and involved different victims, the availability of proper jury instructions and limiting the state‘s cross-examination would have cured any prejudice resulting from joinder.” Id. at 572 (internal quotation marks omitted).
In his briefing to this court, defendant criticizes the Court of Appeals’ reliance on a “simple and distinct” evidence inquiry for denying severance, and he again argues that the predicted testimony about defendant‘s
reputation for sexual violence was so prejudicial that the trial court abused its discretion when it denied his motion to sever.
II. ANALYSIS
The rules for joinder in Oregon are governed by statute.
“A charging instrument must charge but one offense, and in one form only, except that: “*****
“(b) Two or more offenses may be charged in the same charging instrument in a separate count for each offense if the offenses charged are alleged to have been committed by the same person or persons and are:
“(A) Of the same or similar character;
“(B) Based on the same act or transaction; or
“(C) Based on two or more acts or transactions connected together or constituting parts of a common scheme or plan.”
And
“(3) If it appears, upon motion, that the state or defendant is substantially prejudiced by a joinder of offenses under subsection (1) or (2) of this section, the court may order an election or separate trials of counts or provide whatever other relief justice requires.”
Because there is no dispute that the charges against defendant were properly joined in the same indictment, our focus is on the severance provision set out in subsection (3), and ultimately on whether the trial court was required to grant defendant‘s motion to sever the charges related to M from the charges related to L. That ultimate question, however, encompasses several component questions that we also must resolve. Most significantly, the parties disagree about the meaning of “substantial prejudice” and the circumstances under which a trial court is required to sever joined charges. Our resolution of that dispute, however, turns on additional questions about how a reviewing court determines whether that standard was met.
All of those disputes present questions of statutory construction that we resolve by employing our well-established analytical framework, as set out in PGE v. Bureau of Labor and Industries, 317 Or 606, 859 P2d 1143 (1993), and modified in State v. Gaines, 346 Or 160, 206 P3d 1042 (2009). Under that framework, we examine the text and context of
For the reasons that follow, we conclude that whether the joinder of multiple charges substantially prejudices a party is a question of law and, thus, that an appellate court reviews the question without deference to the determination of the trial court. We emphasize, however, that that legal question is a circumstance-dependent inquiry; that relevant circumstances can include whether joinder would permit a jury to hear otherwise-inadmissible evidence; and that case-specific circumstances may require severance even if the evidence of the joined charges is simple and distinct.
We also conclude that, in this case, the trial court did not err in rejecting defendant‘s theory of substantial prejudice because the record permitted the court to infer that the state would not in fact offer the identified prejudicial evidence. Accordingly, the judgment of conviction is affirmed. The decision of the Court of Appeals is also affirmed, although we take this opportunity to clarify the role of a “simple and distinct” inquiry when an Oregon court considers a party‘s claim of substantial prejudice caused by joinder of unrelated offenses.
A. Brief Overview of Oregon Joinder Law
Oregon law has permitted the joinder of certain offenses for indictment and trial since 1933.4 See State v. Warren, 364 Or 105, 117, 430 P3d 1036 (2018) (describing Or Laws 1933, ch 40, § 1; OCLA § 26-711 (1940), recodified at
offenses“); Exhibit LL, Senate Committee on Judiciary, HB 2251, June 7, 1989 (same).
Ten years later, the legislature amended
B. Whether a party is “substantially prejudiced” by joinder is a legal determination.
Although the state contends that we should review the denial of a motion to sever for abuse of discretion, we have previously held otherwise. In Miller, this court explained that evaluating a motion to sever under
The state acknowledges that holding in Miller but invites us to reconsider whether the determination of substantial prejudice under
First, the text of the statute itself continues to suggest that the legislature contemplated a two-step analytical process: The statute specifies that, “[i]f it appears” that a party “is substantially prejudiced,” then “the court may order” relief.
Second, in multiple decisions since Miller, this court has continued to review the question of prejudice under
Thus, we adhere to our conclusion in Miller that we review as a matter of law the question of whether the harm that a party has identified from the joinder of multiple charges rises to the level of substantial prejudice. With that question resolved, we turn to the more complicated dispute regarding the kind of harm that will rise to the level of substantial prejudice.
C. “Substantial Prejudice” Under ORS 132.560
Under
The state responds that the legislature intended to adopt the federal standards for joinder and severance, and it urges us to
Both parties are correct in part. Our prior decisions about
This court first considered a claim that the defendant was prejudiced by joinder of charges in Miller, in which the defendant claimed that he was prejudiced by the joinder of multiple sex offenses involving two separate victims. 327 Or at 625. In Miller, we explained that the statutory “prejudice” standard is intended to “safeguard the parties from potential injury or harm to their interests in a fair trial.” Id. at 627 (emphasis in original). Those interests include “the interest in a trial conducted efficiently, and in accordance with all applicable laws,” and the interest “in a decision based on a dispassionate consideration of the evidence rather than bias, emotion, or other improper criteria.” Id. at 627-28. But we rejected the state‘s argument that we should construe the “prejudice” standard of former
Applying those general standards, we concluded that the defendant had not established prejudice under the statute, and we rejected a definition of prejudice that is very similar to the standard that defendant urges us to apply in this case. The defendant in Miller argued that prejudice is inherent when unrelated violent crimes are joined if the evidence of the unrelated charges would not be cross-admissible in separate trials. Id. at 625. The defendant also argued that he was prejudiced because he would testify in his own defense regarding some charges but might not testify regarding the other counts. Id. He further argued that this court “should conclude categorically that prejudice exists” under those circumstances. Id. at 629.
We rejected those arguments. Id. at 635. First, we rejected the defendant‘s “categorical approach” to claims of prejudice resulting from the joinder of unrelated crimes and instead explained that the prejudice analysis “must flow from a case-by-case assessment” rather than a “one size fits all” approach. Id. at 629. In other words, and as pertinent to our inquiry here, we concluded that defendants cannot demonstrate, as a matter of law, that they are “prejudiced” solely on the basis that the joined charges are unrelated violent offenses or solely on the basis that evidence will be introduced that would not be cross-admissible in separate trials.7 We recognized that
would tempt the jury to decide the case on the basis of the defendant‘s perceived propensity to commit crimes“). But we also noted that categorically allowing severance when the evidence of unrelated charges would not be cross-admissible in separate trials “would undermine the legislature‘s policy choice to authorize joinder of unrelated charges for trial.” Id. at 632.
In Thompson and Barone, we reiterated that a successful claim of prejudice under
We again rejected the defendant‘s claim of prejudice in Barone because the defendant‘s theory of prejudice was not case-specific. 329 Or at 217. Instead, the defendant argued that it was “obvious” that joinder of charges for separate murders was “highly inflammatory” and allowed the state to make the defendant look guilty because of other murders, rather than being “required to prove each case on its merits.” Id. In rejecting the defendant‘s claim, we emphasized that such general arguments “could be made in any case in which charges are joined.” Id. Accordingly, we concluded that “[a]bsent an argument of prejudice related to the specific facts of [the] case *** [the] defendant [had] failed to demonstrate that he was prejudiced within the meaning of
Although Miller, Thompson, and Barone were all decided under the 1989 version of
The legislative history of
The legislative history also includes a request from ODAA for the legislature to adopt, as legislative history, federal decisions interpreting the Federal Rules of Criminal Procedure to guide Oregon courts in interpreting
Ninth Circuit‘s analysis of joinder law as a model for Oregon courts. Tape Recording, Senate Committee on Judiciary, HB 2251, June 7, 1989, Tape 228, Side A (testimony of Dale Penn). And Chair Tom Mason explained that HB 2251 would adopt the federal interpretation of
The 1999 legislature reiterated that intent. As explained above, the 1999 legislature approved HB 3374, which, among other things, amended
In addition, as in Oregon, the federal courts had rejected categorical approaches to prejudice and instead evaluated claims of prejudice on a case-by-case basis. See United States v. Lewis, 787 F2d 1318, 1322, opinion amended on denial of reh‘g, 798 F2d 1250 (9th Cir 1986) (rejecting per se rule of prejudice based on the cross-admissibility of evidence and instead embracing case-by-case approach). But, when the legislature adopted wording from the federal rules, federal courts had described at least three theories of prejudice that can justify severing charges. Exhibit I, House Committee on Judiciary, Subcommittee on Crime and Corrections, HB 2251, Jan 13, 1989 (statement of Dale Penn). First, “the jury may confuse and cumulate the evidence, and convict the defendant of one or both crimes when it would not convict [them] of either if it could keep the evidence properly segregated“; second, “the defendant may be confounded in presenting defenses, as where [they] desire[] to assert [their] privilege against self-incrimination with respect to one crime but not the other“; and third, “the jury may conclude that the defendant is guilty of one crime and then find [them] guilty of the other because of [their] criminal disposition.”12 United States v. Foutz, 540 F2d 733, 736
(4th Cir 1976); see also United States v. Ragghianti, 527 F2d 586, 586, 587 (9th Cir 1975) (describing “three possible kinds of prejudice” that result from joinder of unrelated offenses as “(1) the jury may consider that the defendant must be bad to have been charged with so many things; (2) inadmissible proof of one offense may be admissible through a joined offense; and (3) the defendant may wish to testify on one count but not another” (citing Charles A. Wright, 1 Federal Practice and Procedure § 222, 437 (1969)).
The federal cases also identified circumstances under which joinder of multiple charges was so prejudicial that the trial court was required to sever. See, e.g., Armstrong, 621 F2d at 954 (explaining that the moving party needed “to show that joinder was so manifestly prejudicial that it outweighed the dominant concern with judicial economy and compelled exercise of the court‘s discretion to sever“); Lewis, 787 F2d at 1321 (explaining that the court will reverse the denial of a motion to sever charges only when the prejudice was “of such magnitude that the defendant‘s right to a fair trial was abridged“).
For example, multiple federal courts had held that severance was required because the evidence of some joined charges was much stronger than the evidence of other unrelated charges. See Ragghianti, 527 F2d at 587-88 (concluding that severance was required where the evidence for one charge was insufficient to support a conviction and the trial court granted a post-verdict motion for acquittal on that charge); Lewis, 787 F2d at 1322-23 (concluding that severance was required where evidence of prior crimes was admissible for some but not all charges and the evidence of one joined charge was “sparse“); Foutz, 540 F2d at 739 (explaining that, because the evidence of one charge was weaker than the other, there was a “strong likelihood that the jury found [the defendant] guilty of the second robbery, and then concluded that since he had once robbed the bank, it was plausible that he had done so before“). From those federal decisions, the legislature would have understood that the harm from introducing evidence of multiple bad acts could—under certain circumstances—contribute to prejudice so substantial that it required severance, even if the
The federal decisions also provide guidance as to a key issue in this case—the relevance of a determination that the evidence regarding the joined charges is “simple and distinct.” As explained above, the Court of Appeals highlighted that consideration in concluding that defendant was not substantially prejudiced by the joining of charges here because the evidence of defendant‘s conduct towards M and L “was sufficiently simple and distinct to mitigate the dangers created by a joint trial.” Delaney, 314 Or App at 571. In reaching that conclusion, it relied on earlier cases in which it had also highlighted the “simple and distinct” inquiry. See, e.g., State v. Cox, 272 Or App 390, 396-97, 359 P3d 257 (2015) (describing the Court of Appeals’ “simple and distinct” inquiry). According to defendant, the Court of Appeals decisions have erroneously treated that consideration as dispositive of whether a defendant is substantially prejudiced by the joinder of charges. Although the state contends that defendant overstates the weight that the Court of Appeals has attributed to the “simple and distinct” inquiry, we share defendant‘s concern that there is at least a risk of confusion.
We take this opportunity to clarify that a party may be substantially prejudiced by the joinder of charges even where evidence of the joined charges is “simple and distinct.” For one thing, there are categories of prejudice, which we understand the legislature to have recognized under
As described above, however, when the legislature adopted federal joinder law, federal decisions had identified at least three theories of prejudice arising from joinder: (1) that the jury will confuse or cumulate the evidence; (2) that the defendant may be confounded in presenting conflicting defenses; and (3) that the jury will conclude that the defendant is guilty of one crime and therefore guilty of others. Foutz, 540 F2d at 736. Although “simple and distinct” evidence may mitigate prejudice under the first theory, it often will have no bearing on the second and does little to address the third.
As the court in Foutz emphasized, even though the “simple and distinct” inquiry may mitigate concerns about confusing and cumulative evidence, it “does not address itself, however, to the graver mischief possible where the jury, while limiting its consideration of the evidence to the crime to which it relates, properly finds the defendant guilty of one crime but considers that finding probative of [the defendant‘s] guilt of another.” Foutz, 540 F2d at 738 n 5. In Foutz, the federal court concluded that the “simple and distinct” inquiry was inapplicable to the defendant‘s case because the defendant‘s theory of prejudice—that “the jury may conclude that the defendant is guilty of one crime and then find him guilty of the other because of his criminal disposition“—could not be mitigated by “simple and distinct” evidence. Id. at 736, 738. In rejecting the government‘s argument to the contrary, the court concluded that “[t]he reasons for the rule which the government invokes are largely inapplicable and the prejudice to the defendant, arising from the weakness of the government‘s one case and strength of the other, so marked that we cannot presume that the jury adhered to limiting instructions.” Id. at 738. We
In sum, when the defendant moves to sever charges, the trial court must consider “whether the facts stated in the motion show the existence of prejudice” and, if so, “the appropriate form of relief.” Miller, 327 Or at 629. At a minimum, that means that the theory of prejudice must describe more than the prejudice that is an inherent risk of joining charges. Id. at 634; see also Reed, 620 F2d at 712 (explaining that the “risks” of prejudice that the defendant identified “are present in any case in which there is joinder of even remotely similar offenses“). And that theory must describe prejudice related to the specific circumstances of the case. Taylor, 364 Or at 379; Barone, 329 Or at 217. Recognized theories of substantial prejudice include but are not limited to: (1) that the jury will confuse or cumulate the evidence; (2) that the defendant may be confounded in presenting conflicting defenses; and (3) that the jury will conclude that the defendant is guilty of one crime and therefore guilty of others. Foutz, 540 F2d at 736.
On review of the denial of a motion to sever, the reviewing court must determine, as a matter of law, whether the defendant suffered substantial prejudice because of joinder. Taylor, 364 Or at 378; Barone, 329 Or at 217. And we must review for an abuse of discretion any relief that the trial court provided or declined to provide to address the substantial prejudice. Miller, 327 Or at 629.
D. Defendant was not substantially prejudiced by joinder of the charges.
Having described the appropriate framework in reviewing a claim of substantial prejudice under
As described above, after defendant argued that he would be substantially prejudiced by testimony about similar uncharged
might harm that friend. But the prosecutor also described both victims as explaining that “[o]ne of the main reasons [for coming forward] is because of what he did to them.” Defendant did not respond to the “clarification” or offer an alternative theory of substantial prejudice.
Defendant now insists, however, that the prosecutor never expressly disavowed his earlier representation of M‘s predicted testimony. In defendant‘s view, the record of anticipated prejudice from a joint trial must be understood as including testimony that M came forward because she had “heard” that defendant had “done similar things to other women.” And defendant‘s argument that he demonstrated substantial prejudice depends on that view of the record.
But the prosecutor‘s representations about the expected evidence can be understood in multiple ways. The question of whether the prosecutor was clarifying that he did not expect M to offer the concerning testimony was a preliminary question that the trial court needed to answer before determining whether defendant would be substantially prejudiced by the expected testimony. In other contexts, we assume that the trial court resolved preliminary questions in the light most favorable to its legal ruling, and we accept the trial court‘s resolution of a preliminary question if there is evidence to support it. See, e.g., State v. Turnidge (S059155), 359 Or 364, 404, 374 P3d 853 (2016), cert den, 137 S Ct 665 (2017) (explaining that, in the motion to suppress context, this court is “bound” to view the record “in the light most favorable to the trial court‘s ruling” with respect to preliminary questions about the historical circumstances); State v. Cunningham, 337 Or 528, 539-40, 99 P3d 271 (2004) (explaining that this court accepts “reasonable inferences and reasonable credibility choices that the trial court could have made” when reviewing the trial court‘s resolution of preliminary factual questions in the admissible-evidence context). We are unwilling to apply a different standard of review to the dispositive preliminary question here.
In sum, the trial court did not err in rejecting defendant‘s theory of substantial prejudice because the record permitted the court to infer that the state would not in fact offer the identified prejudicial evidence. Because defendant was not substantially prejudiced by joinder, the trial court did not abuse its discretion when it denied defendant‘s motion to sever. Accordingly, we affirm.15
The decision of the Court of Appeals and the judgment of the circuit court are affirmed.