State v. RossState v. Ross
Submitted July 24, 2024.
Frances J. Gray filed the briefs for appellant. Michael Stuart Ross filed the supplemental brief pro se. Francis J. Gray filed the supplemental brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General, filed the brief for respondent.
Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce, Judge.
JOYCE, J.
Affirmed.
JOYCE, J.
Defendant appeals from judgments in a consolidated case in which a jury convicted him of second-degree murder, first-degree attempted murder, second-degree assault, and unlawful use of a weapon (the homicide case); and two counts of solicitation to commit first-degree murder (the solicitation case). Defendant argues that the trial court erred in denying his motion to sever, that the trial court erred in excluding evidence of a
We conclude that: (1) the trial court did not err in denying defendant‘s motion to sever because the cases were properly consolidated and defendant did not suffer substantial prejudice; (2) the trial court did not err in excluding evidence of the witness‘s malingering because that evidence was not admissible as a “true plan” under
MOTION TO SEVER
In one indictment, the state charged defendant with second-degree murder, attempted first-degree murder, two counts of second-degree assault, and two counts of unlawful use of a weapon, alleging that defendant stabbed and beat his mother to death and attempted to kill his brother, A, by stabbing him and beating him with a pipe. While defendant was in jail awaiting trial on those charges, the state charged him in a separate indictment with two counts of solicitation to commit murder, alleging that he offered a fellow inmate, Hwang, money to kill defendant‘s two brothers, A and D, so that his brothers could not testify against him in the homicide case.
The state moved to consolidate the two indictments for trial, arguing that consolidation was proper under
The state represented that it intended to present evidence that defendant solicited Hwang to kill his brothers “so that they could not be witnesses against him at his murder trial.” Thus, in the state‘s view, evidence from the homicide case would be admissible in the solicitation case to prove defendant‘s motive for attempting to hire Hwang to kill adverse witnesses expected to testify in the homicide case. The state also argued that evidence from the solicitation case would be admissible in the homicide case because it is “highly probative of his guilt.” Defendant did not take a position on the consolidation motion, and the trial court granted the motion.
Ten months later, defendant filed a notice of self-defense in the homicide case and moved to sever the two cases. The state had focused on
Defendant also argued that he would suffer substantial prejudice if the charges were consolidated. See
The state opposed the motion, relying on the arguments that it made in its motion to consolidate, namely that consolidation was appropriate because the indictments were logically related and the proof between the two cases was largely overlapping, and that defendant would not suffer substantial prejudice because evidence from both cases would be admissible in separate trials.
The trial court concluded that the indictments were properly consolidated. In doing so, the court relied on
Prior to testifying, defendant renewed his motion to sever, arguing that consolidation deprived him of his right to choose to testify in the homicide case and to remain silent in the solicitation case, and that “it would be in [defendant‘s] best interests to testify in the homicide, but not his best interest to testify in [the] solicitation case.” The state reiterated the reasons that the court initially denied defendant‘s motion to sever and argued that, if defendant testified about the homicide case, “the state would certainly be entitled to cross-examine him about motive and about the things he did later to suggest his consciousness of guilt.” The court denied defendant‘s motion.
Defendant appeals, arguing that the trial court erred in denying his motion to sever because (1) the trial court incorrectly concluded that the cases satisfied the requirements for consolidation set out in
So framed, we begin with the question whether the trial court properly consolidated the charging instruments, which is a legal determination that we review for errors of law. Dewhitt, 276 Or App at 380. Under
“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.”
That statute “is to be broadly construed in favor of initial joinder.” Dewhitt, 276 Or App at 382 (internal quotation marks and citation omitted).
At the outset, we note that the parties focus on different parts of
As noted above, in determining whether consolidation is permitted under
As the trial court noted, evidence in the solicitation case—that defendant wanted Hwang to kill his brothers so that they could not be witnesses against him in the homicide case—would be admissible in the homicide case “to prove intent, motive, and to refute self-defense.” See
That evidentiary overlap, combined with both cases involving the same victim and the same intent, weigh in favor of consolidation such that we conclude that the trial court did not err in consolidating the two cases.4
prejudice as a result of consolidation. Under
Here, the trial court determined that defendant would not be substantially prejudiced as a result of consolidation “because evidence in one case will be admissible in the other. Either way, the jury will hear the facts in both cases.” In challenging that ruling, defendant offers two theories of substantial prejudice. First, defendant argues that the state‘s evidence in the homicide case was much stronger than the evidence in the solicitation case, and thus the homicide evidence would “bolster” the solicitation evidence. That is, defendant argues that the jury would conclude that because defendant was guilty of the murder and attempted murder charges, he is also guilty of the solicitation charges. See id. at 575 (one theory of substantial prejudice is that “the jury will conclude that the defendant is guilty of one crime and therefore guilty of others“).
As the trial court noted, however, even if tried separately, evidence about the homicide would be admissible in the solicitation case to prove defendant‘s motive. Conversely stated, this is not a case where defendant suffered substantial prejudice because the jury heard evidence that would not have been admissible if tried separately and that evidence bolstered an otherwise weak case. Cf. United States v. Lewis, 787 F2d 1318, 1322-23, opinion amended on denial of reh‘g, 798 F2d 1250 (9th Cir. 1986) (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“); United States v. Foutz, 540 F2d 733, 738 (4th Cir. 1976) (severance was required where, if defendant had been tried separately for each offense, evidence of one offense would not have been admissible at the trial for the other offense); Delaney, 370 Or at 569-73 (citing federal cases decided before 1989 in analysis of substantial prejudice standard because “it is undisputed” that, in 1989, the legislature intended to adopt the federal approach to joinder and severance). Thus, the trial court correctly ruled that, because the evidence from the homicide case would be admissible in the solicitation case if tried separately, defendant did not suffer substantial prejudice as a result of consolidation.
Defendant‘s second theory of substantial prejudice is that he was “confounded in presenting defenses” because he wished to testify in the homicide case but assert his privilege against self-incrimination with respect to the solicitation case. See Delaney, 370 Or at 571 (one theory of prejudice that can justify severing charges is a defendant‘s desire to assert their privilege against self-incrimination with respect to one crime but not the other). To prevail on that theory of prejudice, defendant must make “a convincing showing that he has both important testimony to give concerning one count and [a] strong need to refrain from testifying on the other.” Id. at 571 n 12 (quoting United States v. Armstrong, 621 F2d 951, 954 (9th Cir. 1980)).
“We limit our review to the state of the record at the time of the court‘s ruling on the motion to sever.” Brown, 326 Or App at 50-51 (internal quotation marks
Accordingly, the trial court correctly concluded that defendant did not suffer substantial prejudice as a result of consolidation, and thus the trial court did not err in denying his motion to sever.5
EVIDENCE OF HWANG‘S MALINGERING
In the solicitation case, the state alleged that defendant attempted to hire Hwang to kill defendant‘s two brothers and admitted to Hwang that he had killed his mother and attempted to kill his brother. As part of a plea agreement in his own criminal case, Hwang agreed to testify at defendant‘s trial. Defendant sought to impeach Hwang by offering evidence that, according to a fitness-to-proceed evaluation conducted on Hwang by a doctor, Hwang “was likely feigning or exaggerating symptoms” (malingering) “possibly to avoid his legal charges.”
The state moved in limine to exclude that evidence, arguing, among other things, that
not admissible to prove the character of a person in order to show that the person acted in conformity therewith.“). And the state argued that, although other-acts evidence may be admitted for a non-character purpose, such as proof of motive or plan, the evidence does not fall under any of those purposes.
In response, defendant argued that he was offering evidence of Hwang‘s malingering as part of Hwang‘s “true plan” to avoid or minimize his exposure to criminal liability. See State v. Turnidge (S059155), 359 Or 364, 439-40, 374 P3d 853 (2016), cert den, 580 US 1070 (2017) (describing “true plan” evidence as “proof of part of the planning process (even if it is a bad act itself) [that] establishes one or several preliminary steps that culminate in the commission of a charged crime“). In defendant‘s view, Hwang‘s malingering and his cooperation with the state in defendant‘s solicitation
The trial court granted the state‘s motion in limine. In doing so, it rejected defendant‘s argument that Hwang‘s malingering was admissible as “true plan” evidence, concluding that malingering and offering to testify in the solicitation case are “not part of the same plan” and are “completely different methods of going about” minimizing his legal exposure.
We conclude that the trial court correctly excluded evidence of Hwang‘s malingering because it is not “true plan” evidence but rather is impermissible character evidence under
In determining whether the trial court erred in excluding evidence under
a plan[,] including the charged and uncharged crimes as stages in the plan‘s execution.” Turnidge, 359 Or at 439 (internal quotation marks omitted). Put another way, the evidence must be of a preparatory step or stage in the execution of a larger plan.
Here, the trial court reasoned, and we agree, that Hwang‘s possible malingering and his cooperation with the state were not reasonably understood as stages in a larger plan; rather, those two acts were separate, entirely unrelated actions that he may have taken to achieve his goal of minimizing his legal exposure. More specifically, Hwang‘s possible malingering was not a preliminary step in his plan to cooperate with the state, nor is there any evidence suggesting that being a state‘s witness in defendant‘s case and malingering in his own were both necessary to achieve his purported objective of reducing his legal exposure. To the contrary, malingering arguably could have undermined Hwang‘s attempt to cooperate with the state if the state believed that Hwang was not competent to stand trial and thus not competent to testify in defendant‘s solicitation case. Thus, this is not a case where Hwang‘s prior act was admissible as “true plan” evidence. Cf. id. at 440-41 (defendant‘s bomb threat was a preparatory step in the commission of a later bank bombing and was thus admissible as “true plan” evidence). The trial court did not err in excluding that evidence.
COMPENSATORY FINES
The state asked the trial court to impose compensatory fines, arguing that defendant has financial resources and has “shown very clear willingness to solicit and pay somebody to inflict harm upon his family members.” As to economic damages, the state argued that defendant‘s brother, A, incurred significant medical bills and that their mother‘s house and items in the house were damaged during the murder and attempted murder. The state asked that the maximum amount, $500,000, be imposed on Count 1 (second-degree murder) “given the obvious economic damages to [defendant‘s mother‘s] estate‘s assets,” and that the maximum amount “or something close to it,” $375,000, be imposed on Count 2 (attempted first-degree murder).
Defendant argued that those amounts would be “excessive.” The trial court imposed a $400,000 compensatory fine on Count 1 and a $375,000 compensatory fine on Count 2.
On appeal, defendant assigns error to the fines. He makes two arguments, both of which he acknowledges are unpreserved, but he asks that we exercise our discretion to correct them as, in his view, they are plain error. We begin with defendant‘s first argument that the trial court plainly erred in imposing a compensatory fine on Count 1 in favor of his mother‘s estate because his mother‘s estate was not a “qualifying victim,” either legally or factually based on the evidence in the record. See State v. Moreno-Hernandez, 365 Or 175, 181-83, 442 P3d 1092 (2019) (under
In defendant‘s view, under that statutory scheme an estate can be a qualifying victim only if the estate suffered a recurring loss. That interpretation, however, is contrary to the plain text of
Defendant‘s related fact-based argument—that the record does not establish that his mother‘s estate suffered damage because defendant has a 50 percent ownership interest in the house and, in defendant‘s view, the record failed to establish whether damage to the house resulted in economic loss to his interest versus to the estate‘s interest—fares no better. The evidence in the record showed that the home and items in the home suffered damage as a result of the murder and attempted murder. That record permits an inference that, as the trial court concluded, defendant‘s mother‘s estate suffered economic damages. To be sure, defendant offers a competing inference—that only his interest in the home suffered economic damages and his mother‘s interest did not. But at most, that competing inference simply demonstrates that any error in the trial court‘s conclusion is not apparent on the record because we would have to choose between competing inferences. The error is therefore not plain.
Second, defendant argues that the trial court plainly erred because it imposed the fines “without complying with the statutory requirements.”
We agree with defendant that the trial court‘s failure to first impose the fines under
Here, that interest weighs against our exercise of discretion. That is because the trial court would likely impose the same fines on remand. During the sentencing hearing, the trial court considered the maximum amounts allowable under
An additional factor weighing against exercising our discretion is the “interest in requiring preservation of error.” State v. Fults, 343 Or 515, 523, 173 P3d 822 (2007). Under that factor, we consider whether, had defendant raised the issue below, the trial court could have easily fixed the error. Id. at 523 n 5. Here, the trial court had a lawful basis to impose the fines under
Thus, the interests of judicial efficiency and the purposes served by preservation of error, as well as the lack of prejudice to defendant, lead us to decline to exercise our discretion to correct the trial court‘s error.
Affirmed.