State v. Buyes

Defendants must show substantial prejudice in order to request that a trial court sever separate counts for different victims that are similar in nature.

Defendant appealed conviction for two counts of first­degree sodomy (ORS 163.405) and three counts of first­degree sex abuse (ORS 163.427), arguing that the trial court (1) should have granted Defendant’s motion to sever the charges related to each of two victims, and (2) trial court should have allowed Defendant to waive right to jury trial for only some of the counts. The Court held that Defendant did not preserve the second assignment of error. As to the first assignment of error, the trial court declined to sever the counts relating to the two victims because they were similar in nature. Under rules for joinder, the party arguing for severance bears the burden of showing that substantial prejudice will result form joining the charges (ORS 132.560(3)). The Court held that Defendant failed to show that substantial prejudice resulted from denial of the motion to sever.  The Court based this determination on the fact that the jury was given clear instructions on which counts pertained to which victim. Affirmed.