State v. RoelleState v. Roelle
In a single indictment, the state charged defendant with two drug crimes and 16 person crimes. Defendant filed a motion to sever the drug-crime charges from the person-crime charges for separate trials. See ORS 132.560(3) (set out at
The relevant facts are few, and we state them in accordance with the trial court’s findings, which are supported by the record. State v. Dimmick,
Thereafter, in a single indictment, the state charged defendant with the two drug crimes, based on the marijuana found in the house on July 16, 2010, and the 16 person crimes, based on Brown’s statements that defendant had abused her early in the morning on July 16, 2010, and on two prior dates — viz., July 4, 2010, and an unspecified date in December 2008.
Joinder and severance of criminal charges are governed by ORS 132.560, which provides, in pertinent part:
“(1) 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.
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“(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.”
We review a trial court’s determination that a defendant failed to establish the existence of substantial prejudice under ORS 132.560(3) for errors of law. State v. Thompson,
Because it is dispositive, we begin with the question of whether the evidence relating to the drug-crime charges and the person-crime charges in this case was “sufficiently simple and distinct to mitigate the dangers created by joinder [.]” Id. We have held that evidence in support of different charges was “sufficiently simple and distinct” when, for example, the charges were based on discrete incidents that occurred on different days. Dimmick,
In this case, the state argues that at least some of the evidence relating to the two different types of crimes was mutually admissible but, even if it was not, the evidence supporting the drug-crime charges was “sufficiently simple and distinct” from that supporting the person-crime charges that “the jury would have had no problem considering the charges separately.” Defendant does not respond to the state’s alternative argument. His only argument is that the evidence of the two different types of crimes was not mutually admissible.
We agree with the state’s alternative argument that the evidence supporting the drug-crime charges was sufficiently simple and distinct from the evidence of the person-crime charges to mitigate the dangers created by joinder. The drug-crime charges were
“Most of the testimony regarding the marijuana would have been about the events after 6:30 p.m. on July 16, 2010, when the search of the house *** occurred. There would have been no temporal overlap with that evidence and the abuse evidence, the latest instance of which happened in the early morning of that date.”
Because the jury could easily separate its assessment of whether defendant was guilty of the drug crimes from its assessment of whether defendant was guilty of the person crimes, we conclude that defendant did not establish, as required to secure severance under ORS 132.560(3), that he was substantially prejudiced by the joinder of the charges.
Affirmed.
Notes
In a supplemental pro se brief, defendant raises four additional assignments of error. We reject those assignments without discussion.
The following six charges related to the events of July 16, 2010: felony assault in the fourth degree (Count 1), strangulation (Count 2), coercion (Count 3), interference with making a report (Count 4), unlawful delivery of marijuana for consideration (Count 5), and unlawful possession of marijuana (Count 6). The following eight charges related to the events of July 4, 2010: attempted assault in the second degree (Count 7), unlawful use of a weapon (Count 8), menacing (Count 9), rape in the first degree (Count 10), sodomy in the first degree (Counts 11 and 12), sexual abuse in the first degree (Count 13), and sexual abuse in the second degree (Count 14). And, the following four charges related to the events of December 2008: felony assault in the fourth degree (Count 15), assault in the fourth degree (Count 16), strangulation (Count 17), and unlawful use of a weapon (Count 18). Defendant was convicted of Counts 1, 5, 6, 14, and 16.
In the trial court, defendant argued briefly that the drug crimes and person crimes should not have been charged in a single indictment because they did not satisfy the requirements for joinder under ORS 132.560(1), in that they were not “of the same or similar character,” “part of the same act or transaction,” or “parts of a common scheme or plan.” Although defendant renews that argument on appeal, he does not argue that the trial court’s rejection of it below constitutes reversible error.
Defendant also argued in the trial court that trying the drug charges and person-crime charges together would violate his jury trial rights under both Article I, section 11, of the Oregon Constitution, and the Sixth and Fourteenth Amendments to the United States Constitution. Defendant does not renew his constitutional arguments on appeal.