State v. Buyes

• Decision Date: 31 August 2016
• Docket Number: A156338
• Citation: 382 P.3d 562,280 Or.App. 564
• Parties: State of Oregon, Plaintiff–Respondent, v. Ronald Wayne Buyes, Defendant–Appellant.
• Court: Oregon Court of Appeals

280 Or.App. 564

382 P.3d 562

State of Oregon, Plaintiff–Respondent,

v.Ronald Wayne Buyes, Defendant–Appellant.

A156338

Court of Appeals of Oregon.

Submitted November 24, 2015.

August 31, 2016

Peter Gartlan, Chief Defender, and Ingrid A. MacFarlane, Deputy Public Defender, Office of Public Defense Services, filed the brief for appellant.

Ellen F. Rosenblum, Attorney General, Anna M. Joyce, Solicitor General, and

Michael S. Shin, Assistant Attorney General, filed the brief for respondent.

Before Sercombe, Presiding Judge, and Tookey, Judge, and Garrett, Judge.

GARRETT

, J.

Defendant appeals a judgment of conviction for two counts of first-degree sodomy, ORS 163.405

, and three counts of first-degree sex abuse, ORS 163.427. The offenses charged in the indictment involved conduct against one victim (defendant's nephew) in the 1990s and conduct against a second victim (another nephew of defendant) more than a decade later. On appeal, defendant raises two assignments of error. In the first assignment, defendant contends that the trial court should have granted his motion to sever the charges related to each victim. In the second assignment, defendant argues that the court should have allowed him to waive his right to a jury trial on only some of the counts. We conclude that defendant's basis for that contention—that the trial court improperly weighed factors relating to judicial economy—was not preserved because he failed to object to the trial court's ruling on that basis, nor did he offer any arguments as to why the court's analysis was incorrect. Defendant does not raise a plain error argument on appeal. Accordingly, we decline to further address the second assignment of error. As to the motion to sever, we affirm for the reasons explained below.

We limit our review to the state of the record at the time of the court's ruling on the motion to sever. State v. Tidwell , 259 Or.App. 152, 156, 313 P.3d 345 (2013)

, rev. den. , 355 Or. 142, 326 P.3d 1207 (2014). Counts 1 through 4 concerned nephew K when K was between the ages of 11 or 12 and 14. Count 1 (sodomy) alleged that defendant engaged in “deviate sexual intercourse” with K in October 1995. Count 2 (sex abuse) alleged that defendant subjected K to sexual contact by “touching [his] penis, sexual or intimate part” in October 1995. Counts 3 and 4 (also sex abuse) repeated the same allegation as Count 2 but for October 1997, two years later.

Counts 5 through 7 concerned nephew J, when J was 14 and 15 years old. Count 5 (sodomy) alleged that defendant subjected J to “deviate sexual intercourse” in April 2011 and that J was “incapable of consent by reason of physical helplessness.” Count 6 (sex abuse) alleged that defendant subjected J to sexual contact, by way of forcible compulsion, by “touching his penis, a sexual or intimate part” of J, in April 2012. Count 7 (also sex abuse) alleged that defendant subjected J to sexual contact by “touching his penis, a sexual or intimate part” of J and that J was “physical[ly] helpless,” in April 2012.

Defendant moved to sever the counts relating to K from the counts relating to J. At a hearing on the motion, defendant argued that

“there's a risk of confusion of the issues, cross-contamination such that—that the jury won't be able to determine which evidence is admissible for which charge. Given that the DA just offered to the Court that he did intend to offer these as a cohesive theory and intertwine the evidence, I think that further supports the necessity for severance of the motions for severance of—of the two victims in this case. I think it's very likely a jury would get confused about what evidence they can consider for which victim, given the prosecution theory of the case and severance is critical for that reason.”

The prosecutor argued that joinder was appropriate because the cases were “inextricably linked” in that both victims were defendant's nephews and were “similar victims” because they were “underage family members.” The prosecutor noted the commonality of the alleged conduct toward both victims and the fact that the abuse of both victims had occurred at multiple locations over extended periods of time.

The trial court denied defendant's motion to sever, explaining:

“The Court finds that there are a lot of similarities between the two cases. There certainly is similar conduct, as far as the type of charges that have been charged as well. There are also—this—the chronological way in which the disclosure occurred makes one important for the other one as well. Secondly, they go to—there's information regarding the disclosure in one case and how it related to the other case.

“Clearly, they're similar in nature as to the potential groomings, * * * the type of individuals, * * * young males, and the fact that they were related as far as family members go and those sort of things. And so I think it's appropriate to keep the counts on the same charging instrument to present to the finder of fact.”

At the close of trial, the court instructed the jury that evidence of crimes committed against K could not be considered in reaching a verdict on Counts 5 and 6 (the counts concerning J) “unless and until you independently conclude, without considering [that] evidence, that the physical acts described in Counts 5 through 6 actually happened.”¹ The court also gave the obverse instruction, restricting the jury's ability to consider evidence of crimes against J in reaching its verdict on Counts 1 through 4.

The trial court also instructed the jury that at least 10 members had to agree on a verdict, and the verdict form included, for each count, a brief description of what charged conduct corresponded to each charge. The court explained to the jury that the purpose of those descriptions was to ensure that all jurors “know exactly what you are all agreeing to.”

The jury convicted defendant on Counts 1 through 5 and acquitted him on Count 6.

On appeal, defendant argues that the trial court erred in denying his motion to sever because the charged offenses as to K and J were not of the “same or similar character” under ORS 132.560(1)(b)(A)

, and because he was substantially prejudiced by their joinder under ORS 132.560(3).

Joinder and severance of charges is governed by ORS 132.560

, which “sets out circumstances in which multiple charges may or are required to be tried together and, conversely, when they may or must be tried separately.” State v. Dewhitt , 276 Or.App. 373, 379, 368 P.3d 27 (2016) (internal quotation marks omitted). ORS 132.560 provides, in relevant 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.”

Accordingly, under the statute, permissive joinder requires that the court “first determine whether the charges meet any of the independently sufficient bases for joinder listed in ORS 132.560(1)(b)(A) to (C)

.” Dewhitt , 276 Or.App. at 380, 368 P.3d 27. That is, if the charges are of the same or similar character, based on the same act or transaction, or connected together as part of a common scheme or plan, they may be consolidated. Id . Whether the charging instruments were properly joined is a legal determination that we review for legal error. Id . (citing State v. Thompson, 328 Or. 248, 256–57, 971 P.2d 879, cert. den. , 527 U.S. 1042, 119 S.Ct. 2407, 144 L.Ed.2d 805 (1999) ).

When charges are joined, either party may move the court to sever the charging instruments, under ORS 132.560(3)

, upon a showing that the party is “ ‘substantially prejudiced by a joinder of offenses.’ ” State v. Gensler , 266 Or.App. 1, 8, 337 P.3d 890 (2014), rev. den. , 356 Or. 690, 344 P.3d 1112 (2015) (quoting ORS 132.560(3) ). “The party seeking severance of properly joined charges bears the burden of demonstrating that joinder will result in substantial prejudice.”

State v. Crummett , 274 Or.App. 618, 620, 361 P.3d 644 (2015)

. The court “may then exercise discretion to order separate trials or ‘whatever other relief justice requires.’ ” Dewhitt , 276 Or.App. at 380, 368 P.3d 27 (quoting State v. Johnson , 199 Or.App. 305, 314, 111 P.3d 784, rev. den. , 339 Or. 701, 127 P.3d 1203 (2005) ).

We review the trial court's determination that defendant failed to demonstrate “substantial prejudice” for legal error. Crummett , 274 Or.App. at 621, 361 P.3d 644

.

Defendant contends that his offenses were not of “the same or similar character” under ORS 132.560(1)(b)(A)

.

We disagree. As the trial court concluded, his offenses were based on the patently “similar conduct” of targeting his young, male family members for sexual purposes. See, e.g. , State v. Norkeveck , 214 Or.App. 553, 560, 168 P.3d 265 (2007)

, rev. den. , 344 Or. 558, 187 P.3d 219 (2008) (joining cases after concluding that charged offenses were of similar character when one case involved sexual conduct against a 12–year–old girl and the other case involved encouraging child sexual abuse). The fact that defendant's charged offenses were separated by a number of years does not negate the “same or similar character” of defendant's conduct concerning both victims. See, e.g. , State v. Meyer , 109 Or.App. 598, 603, 820 P.2d 861 (1991), rev. den. , 312 Or. 677, 826 P.2d 636 (1992) (defendant's five traffic offenses, which took place over the span of six years, were properly joined...