State v. Delaney

• Decision Date: 15 September 2021
• Docket Number: A165686
• Citation: 498 P.3d 315,314 Or.App. 561
• Parties: STATE of Oregon, Plaintiff-Respondent, v. Anthony Randall DELANEY, Defendant-Appellant.
• Court: Oregon Court of Appeals

314 Or.App. 561

498 P.3d 315

STATE of Oregon, Plaintiff-Respondent,

v.Anthony Randall DELANEY, Defendant-Appellant.

A165686

Court of Appeals of Oregon.

Argued and submitted November 12, 2019

September 15, 2021

Ryan Scott argued the cause and filed the briefs for appellant.

Rolf C. Moan, Assistant Attorney General, argued the cause for respondent. Also on the briefs were Ellen F. Rosenblum, Attorney General, and Benjamin Gutman, Solicitor General.

Before DeVore, Presiding Judge, and DeHoog, Judge, and Mooney, Judge.

MOONEY, J.

Defendant was charged with six offenses related to two incidents of sexual assault involving different victims. A jury found defendant guilty of all six offenses. Count 3 was merged with Count 1 and Count 6 was merged with Count 4 at the time of sentencing and a judgment of conviction on Counts 1, 2, 4, and 5 was entered. On appeal, defendant contends that the trial court erred in denying his pretrial motion to sever, in which he sought separate trials for the charges related to each victim. As part of that contention, he argues that the court erred by failing to weigh the probative value of the evidence that would have been presented at the joint trial against its prejudicial effect, pursuant to OEC 403.¹ We conclude that the trial court did not err in denying the motion and that defendant failed to preserve his argument under OEC 403. Defendant also assigns error to the court's nonunanimous jury verdict instruction. Defendant concedes that he did not preserve that assignment of error and that no jury poll was requested or conducted. Accordingly, defendant's argument is foreclosed by State v. Dilallo , 367 Or. 340, 478 P.3d 509 (2020). We, therefore, affirm the judgment.

"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. Buyes , 280 Or. App. 564, 565, 382 P.3d 562 (2016). We review for errors of law the trial court's determination that joinder of the charges would not "substantially prejudice" defendant, as required by ORS 132.560(3). State v. Luers , 211 Or. App. 34, 43, 153 P.3d 688, adh'd to as modified on recons , 213 Or. App. 389, 160 P.3d 1013 (2007). We must also be able to determine, from the record, that the trial court engaged in the required prejudice analysis. State v. Bruning , 180 Or. App. 247, 253, 42 P.3d 365, rev. den. , 335 Or. 114, 61 P.3d 256 (2002).

Defendant was charged in a single indictment with six counts: Counts 1 through 3—first-degree rape, ORS 163.375 (Count 1), first-degree sexual abuse, ORS 163.427 (Count 2), and second-degree sexual abuse, ORS 163.425 (Count 3)—were related to defendant's alleged conduct toward M. Counts 4 through 6—sodomy in the first degree, ORS 163.405 (Count 4), first-degree sexual abuse (Count 5), and second-degree sexual abuse (Count 6)—were related to defendant's alleged conduct toward L. Before trial, defendant moved to sever the charges related to each victim, arguing in his written motion that trying the two victims’ cases together was improper because it would "prejudice" him. The trial court held a hearing on the motion, during which the state made an offer of proof of the evidence that it expected to present at trial. Consistent with our standard of review, we state the evidence as the state represented it would be at the hearing on defendant's motion.

The state began by describing M's case. According to the state, M did not know defendant until one of their mutual friends introduced them. Shortly thereafter, M contacted defendant so that he could help her sell her car. She went to his trailer in Estacada to meet with him while she was "crashing and coming down" from a methamphetamine high. Because of her "crash," at defendant's insistence, she took a nap in the hull of his boat, which was parked on his property.

When defendant told M that he was going to take the boat out, she responded that she would keep sleeping. When she woke up, the two of them were alone on the boat in the Clackamas River, defendant was behind her, her pants were pulled down, and he was raping her. At that point she froze because she was afraid of defendant. Her fear was based on (1) defendant's talk about being involved with a gang, (2) her understanding that defendant had guns on his person "all the time," (3) her belief that "he's this dangerous guy," and (4) the fact that the two of them were alone on a boat in the middle of the river. M pretended to sleep until after defendant finished, at which point she pretended to wake up.

Despite the alleged incident's date of summer 2014, M did not report the incident until fall 2016. She ultimately came forward "because she heard allegedly that he's done similar things to other women," and because she had "gotten clean." As a result of M's report, the state charged defendant with Counts 1 and 2, first-degree rape and first-degree sexual abuse, alleging that M was physically helpless, and Count 3, second-degree sexual abuse, alleging that M did not consent to sexual intercourse.

As to L, the state represented that the evidence would show that defendant dealt drugs to L's boyfriend around the time of the alleged crime. As a result, L had "hung out" and "done methamphetamine" with defendant before the incident. According to the state, L would testify that, on August 25, 2016, she was walking down the road in southeast Portland when defendant saw her, and offered her a ride. She accepted and he agreed to take her to her relative's house. When she realized that they were going in the wrong direction, she asked why, and he responded that he was taking her to his trailer in Estacada. She told him that she did not want to go there, but defendant said that he needed to "do a few things" and that he would take her wherever she wanted to go when he was finished. When they arrived, he told her that he needed about an hour, so she decided to go into his trailer with him.

Shortly after going into his trailer, defendant asked L to give him oral sex. She was initially afraid because she knew that (1) defendant was involved in a gang, (2) he had several guns around, and (3) there were "scary" stories about him. Defendant then allegedly pointed a gun at L's head, hit her head, and forced her to perform oral sex on him. Later, she asked him if she could go to the bathroom, which was outside, but he would not let her unless he went out and watched her. At some later point that evening, defendant fell asleep on top of L's purse; she decided to leave without it to avoid waking him up. She left the trailer and ran down the road where she encountered a man who provided her with transportation into town. She then contacted the police and reported the sexual assault. An officer documented her injuries and took her statement, which, according to the state, was consistent with what is described above. As a result, defendant was charged with Counts 4 through 6, first-degree sodomy, first-degree sexual abuse, and second-degree sexual abuse.

After the state's offer of proof, the parties argued about the relevant legal framework for ruling on a motion to sever. Defendant argued that, if the evidence were presented at trial consistently with the way in which the state described it at the motion hearing, he would be "substantially prejudiced." Defendant asserted that, by trying the cases together, each case would "cross-pollinate"² the other one because M's explanation for waiting to come forward would bolster L's testimony about reporting her own assault. In other words, if M testified that she had reported her assault months after it occurred, and L testified that she wanted to report her assault because she had heard that defendant was dangerous, each victim would provide a common explanation for their cooperation. And, ultimately, their testimony would combine to demonstrate that defendant had a propensity for violence.

Defendant also asserted that, if he were tried separately on the counts related to each alleged victim, "[n]one of the evidence *** from one case would be admissible in the other case." And because of that lack of mutually admissible evidence, defendant argued that the jury's simultaneous exposure to both cases would substantially prejudice him. Defendant did not specifically argue, however, that the evidence from one case would be inadmissible in the other case under an OEC 403 balancing analysis.

The state responded that there would not be any "cross-pollination" because the facts of the two cases were "simple and distinct" and, with a proper limiting instruction and limitations on cross-examination, neither of the two victims’ testimony would influence the jury's decision in the other woman's case. The "simple and distinct" theory, as we explain below, allows the admission of evidence related to each victim's case in a joint trial so long as the jury can determine which facts are relevant to each case. The state specifically relied upon State v. Miller , 327 Or. 622, 969 P.2d 1006 (1998) ; State v. Norkeveck , 214 Or. App. 553, 168 P.3d 265 (2007), rev. den. , 344 Or. 558, 187 P.3d 219 (2008) ; and State v. Cox , 272 Or. App. 390, 396, 359 P.3d 257 (2015), to support its "simple and distinct" theory.

In Miller , the Supreme Court explained that, under ORS 132.560(3), undue prejudice does not necessarily result from the joinder of multiple offenses related to different victims in a single trial. 327 Or. at 629, 969 P.2d 1006. Rather, trial courts must engage in a "case-by-case assessment" of the charges before concluding that charges must be tried separately. Id. In both Norkeveck and Cox , we assessed the evidence and concluded that the charges related to each victim were "sufficiently simple and distinct that the trier of fact would have been able to separately consider the charges." Norkeveck , 214 Or. App. at 560-61, 168 P.3d 265 ; Cox , 272 Or. App. at 397-98, 359 P.3d 257. In Cox , we further noted that, " ‘even if we assume[d] that the evidence in each...