State v. Gensler

• Decision Date: 08 October 2014
• Docket Number: A150491 Control,C111144CR, C111650CR,A150493.
• Parties: STATE of Oregon, Plaintiff–Respondent, v. Christopher Robin GENSLER, Defendant–Appellant.
• Court: Oregon Court of Appeals

266 Or.App. 1
337 P.3d 890

STATE of Oregon, Plaintiff–Respondent
v.
Christopher Robin GENSLER, Defendant–Appellant.

C111144CR, C111650CR
A150491 Control
A150493.

Court of Appeals of Oregon.

Submitted Jan. 29, 2014.
Decided Oct. 8, 2014.

337 P.3d 892

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.

Opinion

HASELTON, C.J.

266 Or.App. 3

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 ;¹ (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).² The

337 P.3d 893

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 provide whatever other relief justice requires.”

(Emphasis added.) Defendant contended that trying the cases together would substantially prejudice him for three reasons.

First, defendant contended that “[a] joint trial would undermine [his] right to a fair trial by removing the protections afforded him by the Oregon Evidence Code's provisions limiting the use of character evidence to show propensity and excluding unfairly prejudicial evidence.” Specifically, defendant contended that trying the cases together would substantially prejudice him because the state would be able to present evidence in a single trial that would not be cross-admissible if the cases were separately tried and, as a result, the evidence pertaining to each case would serve as inadmissible propensity evidence in the other case in violation of OEC 404(3).³ Although defendant acknowledged that he could “ask for a limiting instruction to tell the jury that they should ignore what they've spent a day or two hearing about for purposes of making one decision that * * * they're here to make,” he explained that “as a practical matter” a “joint trial” would substantially prejudice him.

266 Or.App. 5

Second, defendant asserted that, because he expected that he would testify in one case but not the other, a “joint trial would also burden [his] right against self-incrimination” and his right to testify under the Oregon and United States constitutions. According to defendant, that was so because, once he testified in the case pertaining to J that he had not committed the alleged conduct, he would be subject to cross-examination about the case pertaining to C—in which his defense was incapacity due to immaturity under ORS 161.290⁴ —and the jury would then hear defendant testify that “something happened” with C “but it happened when [defendant] was under the age of 12.”

Finally, defendant contended that a joint trial would “deny him due process protected by the Fourteenth Amendment [to] the [United States] Constitution” and a fair trial under the Sixth Amendment to the United States Constitution and “the criminal procedure provisions of [Article I, section 11, of] the Oregon Constitution.” Specifically, defendant posited that “[a] joint trial on these multiple cases would so effectively portray [him] as a serial offender, taint his ability to testify or remain silent, and invite the jury to make decisions based on unfair prejudice, that it would amount to an unfair trial and a violation of due process.”

The state countered that defendant had not demonstrated substantial prejudice because “the jury is not going to have any difficulty in separately considering the merits of each case individually.” Moreover, relying on State v. Miller, 327 Or. 622, 969 P.2d 1006 (1998), the state explained that, “[i]n a consolidated trial, evidence of each case is admissible for a non-propensity purpose (to prove each separate crime)[.]”⁵

337 P.3d 894

266 Or.App. 6

Alternatively, noting that evidence of other crimes is admissible under OEC 404(3) to prove “a person's motive, intent, or lack of mistake,” the state posited that “the court could find that under OEC 404 the evidence in each offense would be mutually admissible in separate trials.”

The trial court denied defendant's motion to sever, explaining that defendant had not demonstrated substantial prejudice because the cases are “separate enough that the jury could make a determination very easily on one case, and on the other case and not be confused by the conduct.” The court also explained that it could fashion limitations on cross-examination so that defendant could testify in the case pertaining to J without having to testify in the case pertaining to C and suggested that defendant could request instructions to guide the jury's consideration of the evidence. Alternatively, with regard to the issue of the cross-admissibility of evidence, the court explained that, if it were to go through the analysis under OEC 404(3) and apply the analytical construct established in State v. Johns, 301 Or. 535, 725 P.2d 312 (1986), the evidence in one case would be cross-admissible “in the other case to show intent, opportunity, [and] motive.” Finally, the court rejected defendant's due process contentions, reasoning that there was no “violation of due process in this particular scenario.”

The cases proceeded to trial. Before defendant was called to testify—and contrary to his stated intention during the hearing on the motion to sever—defendant told the trial court that he had decided to testify in both cases. In response, the court noted that the state would be allowed to cross-examine defendant “on both cases, unless [the state] goes outside the scope of * * * direct.” Ultimately, defendant testified that the alleged conduct pertaining to J had not occurred but recounted that, in 1993—once when defendant

266 Or.App. 7

was six and once after he had turned seven—“[C], you know, asked me to kiss his penis, and I—he said he would do the same to me, so he did, and then I kissed his penis, and then we pulled our pants up.” Defendant further testified that his conduct towards C was not “intended to be a sex act” because defendant “didn't really understand * * * what any of that was about.”

Significantly, during trial, the state did not contend that the evidence relating to one case was admissible to prove any element of the other. Ultimately, and consistently with that approach, the state never argued to the jury that it should consider defendant's conduct towards C in determining his guilt with respect to the charges involving J. Conversely, defendant did not request that the court instruct the jury that any evidence relating to one case was not admissible to prove the other case or that it was prohibited from using the evidence in one case...