State v. Gensler

Under ORS 132.560(3), charging instruments that have been consolidated may be severed upon motion if the defendant is substantially prejudiced by the joinder of offenses.

Defendant appealed the denial of a motion to sever. In 2011, Defendant was indicted on charges of first-degree sodomy and first-degree sexual abuse for acts committed against victim J between September 23, 1998 and September 23, 2004. Defendant was subsequently indicted with the same charges for acts committed against victim C between December 1, 1998 and December 31, 1999. The State moved to consolidate the cases, which the trial court granted. Defendant later moved to sever the cases, which the trial court denied. The cases went to trial and the Defendant was convicted on all charges. Defendant appealed, arguing (1) the trial court erred in denying the motion to sever; (2) the trial court erred in instructing the jury; and (3) the trial court erred in awarding court appointed attorney’s fees for each case. The Court first held that Defendant failed to establish substantial prejudice, thus the trial court did not err in denying the motion to sever. Second, the asserted jury instruction error was not reviewable as plain error. Finally, the trial court did not err in imposing attorney fees in each case because the trial court found that Defendant had the ability to pay them in the future. Affirmed.