Submitted: January 29, 2014.
C111144CR, C111650CR. Washington County Circuit Court. Rick Knapp, Judge.
Peter Gartlan, Chief Defender, and Zachary Lovett Mazer, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and Douglas F. Zier, Senior Assistant Attorney General, filed the brief for respondent.
Before Duncan, Presiding Judge, and Haselton, Chief Judge, and Schuman, Senior Judge.
[266 Or.App. 3] HASELTON, C. J.
Defendant, who was convicted in two criminal cases--each of which involved a different victim--appeals, raising 12 assignments of error. We reject without written discussion all but four of those assignments of error and write to address only defendant's contentions that the trial court (1) erred in denying his motion to sever the two cases for separate trials under ORS 132.560;  (2) plainly erred under State v. Leistiko, 352 Or. 172, 282 P.3d 857, adh'd to as modified on recons, 352 Or. 622, 292 P.3d 522 (2012), in failing to instruct the jury regarding limitations on its consideration of evidence of defendant's conduct towards the victim in one of the consolidated cases in determining defendant's scienter with respect to the other consolidated case; and (3) erred in imposing attorney fees in each of the cases in the absence of evidence of defendant's ability to pay them. For the reasons explained below, we conclude that the trial court did not err in denying defendant's motion to sever the cases, that any instructional error is not plain, and that the trial court did not err in imposing attorney fees. Accordingly, we affirm.
The pertinent facts are few and mainly procedural. In May 2011, the state indicted defendant in Case Number C111144CR on charges of first-degree sodomy, ORS 163.405, and first-degree sexual abuse, ORS 163.427, for acts committed between September 23, 1998 and September 23, 2004, against the victim, J. Thereafter, in July 2011, the state, in a separate indictment, charged defendant in Case Number C111650CR with first-degree sodomy for acts committed between December 1, 1998 and December 31, 1999, against another victim, C. Based on the dates alleged in the indictments, defendant was between 12 and 18 years of age at the time of the alleged conduct. The victims, who were members of defendant's family, were both younger than defendant.
Before trial, the state moved to consolidate the cases under ORS 132.560(1)(b)(A). The
trial court granted that motion over defendant's objection.
[266 Or.App. 4] Thereafter, defendant moved to sever the cases for separate trials under ORS 132.560(3). That statute provides:
" 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 ...