March 26, 2014
STATE OF OREGON, Plaintiff-Respondent,
BRIAN DAVID ROELLE, Defendant-Appellant
Submitted: May 29, 2013.
Washington County Circuit Court. C102376CR. Kirsten E. Thompson, Judge.
Peter Gartlan, Chief Defender, and Louis R. Miles, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Brian Roelle filed the supplemental brief, Pro se.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Christina M. Hutchins, Senior Assistant Attorney General, filed the brief for respondent.
Before Wollheim, Presiding Judge, and Duncan, Judge, and Rasmussen, Judge pro tempore.
[261 Or.App. 706] DUNCAN, J.
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 Or.App. at (slip op at 2)). The trial court denied the motion. A jury convicted defendant of the two drug crimes and three of the person crimes. Defendant appeals, assigning error to the trial court's denial of his motion to sever. We affirm.
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, 248 Or.App. 167, 169, 273 P.3d 212 (2012). Around 9:15 a.m. on July 16, 2010, defendant's domestic partner, Brown, told a police officer that defendant had abused her earlier that morning. Around 6:00 p.m., an officer arrested defendant. At 6:30 p.m., Brown accompanied officers to the house that she and defendant shared, and gave the officers permission to enter and search the house. During the search, the officers seized a large amount of marijuana from the residence.
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. As mentioned, defendant moved to sever [261 Or.App. 707] the drug-crime charges from the person-crime charges. The trial court denied the motion, and defendant appeals that denial.
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.
" * * * *
" (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."
(Emphasis added.) On appeal, defendant argues that the trial court erred in denying his motion to sever because he showed, as required by ORS 132.560(3), that " he was 'substantially prejudiced' by the consolidation." 
[261 Or.App. 708] 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, 328 Ore. 248, 256-57, 971 P.2d 879, cert den, 527 U.S. 1042, 119 S.Ct. 2407, 144 L.Ed.2d 805 (1999) (interpreting ORS 132.560 (1993), amended by Ore. Laws 1999, ch 1040, § 17, which required a showing of " prejudice" ); State v. Tidwell, 259 Or.App. 152, 154, 313 P.3d 345 (2013). " Whether the joinder of charges substantially prejudiced a particular defendant involves a case-specific assessment of the charges and the facts alleged to support them." Dimmick, 248 Or.App. at 178. " The mere assertion that evidence relating to some charges will influence the jury's consideration of other charges is insufficient." Id. If the evidence supporting the various charges " would be mutually admissible in separate trials or is sufficiently simple and distinct to mitigate the dangers created by joinder, substantial prejudice has not been established." State v. Luers, 211 Or.App. 34, 43-44, 153 P.3d 688, adh'd to as modified on recons, 213 Or.App. 389, 160 P.3d 1013 (2007).
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, 248 Or.App. at 178-79 (permitting joint trial on drug charges that were based on four different incidents where the evidence in support of the charges was " sufficiently simple and distinct" ); see also Tidwell, 259 Or.App. at 155 (affirming trial court's denial of the defendant's motion to sever two driving under the influence of intoxicants charges where the charges were based on " discrete incidents on separate days, and the evidence in each case was uncomplicated and supported by separate witnesses" ); State v. Norkeveck, 214 Or.App. 553, 560-61, 168 P.3d 265 (2007), rev den, 344 Ore. 558, 187 P.3d 219 (2008) (affirming trial court's denial of the defendant's motion to sever charges relating to possession of child pornography from charges relating to sexual conduct with a minor because the evidence supporting the different charges was " sufficiently [261 Or.App. 709] simple and distinct [such] that the trier of fact would have been able to separately consider the charges" ).
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
based on evidence that defendant possessed a large amount of marijuana on July 16, 2010. The questions before the jury regarding the drug crimes were simple and separate from the questions regarding the person crimes, even though the drug crimes were alleged to have occurred on the same day as some of the person crimes. As defendant himself acknowledges,
" 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.