State v. Ross

1

336 Or.App. 428

STATE OF OREGON, Plaintiff-Respondent, v. MICHAEL STUART ROSS, Defendant-Appellant.

A178503, A178504

Court of Appeals of Oregon

November 27, 2024

Submitted July 24, 2024.

Washington County Circuit Court 18CR32198, 19CR45558; Theodore E. Sims, Judge.

Frances J. Gray fled the briefs for appellant. Michael Stuart Ross fled the supplemental brief pro se. Francis J. Gray fled the supplemental brief for appellant.

Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Patrick M. Ebbett, Assistant Attorney General fled the brief for respondent.

Before Aoyagi, Presiding Judge, Egan, Judge, and Joyce, Judge.

Affirmed.

JOYCE, J.

Defendant appeals from judgments in a consolidated case in which a jury convicted him of second-degree murder, first-degree attempted murder, second-degree assault, and unlawful use of a weapon (the homicide case); and two counts of solicitation to commit first-degree murder (the solicitation case). Defendant argues that the trial court erred in denying his motion to sever that the trial court erred in excluding evidence of a witness's "malingering," and that the trial court plainly erred in imposing compensatory fines on the second-degree murder and first-degree attempted murder convictions. Finally, in a pro se assignment of error, defendant challenges numerous rulings related to objections and motions.

We conclude that: (1) the trial court did not err in denying defendant's motion to sever because the cases were properly consolidated and defendant did not suffer substantial prejudice; (2) the trial court did not err in excluding evidence of the witness's malingering because that evidence was not admissible as a "true plan" under OEC 404(3); and (3) the trial court plainly erred in imposing compensatory fines, but we decline to exercise our discretion to correct the error. We further conclude that defendant's pro se supplemental claim of error fails to establish any error and reject it without further discussion. Accordingly, we affirm.

MOTION TO SEVER

In one indictment, the state charged defendant with second-degree murder, attempted first-degree murder, two counts of second-degree assault, and two counts of unlawful use of a weapon, alleging that defendant stabbed and beat his mother to death and attempted to kill his brother, A, by stabbing him and beating him with a pipe. While defendant was in jail awaiting trial on those charges, the state charged him in a separate indictment with two counts of solicitation to commit murder, alleging that he offered a fellow inmate, Hwang money to kill defendant's two brothers, A and D, so that his brothers could not testify against him in the homicide case.

The state moved to consolidate the two indictments for trial, arguing that consolidation was proper under ORS 132.560(1)(b)(C), which allows consolidation when the offenses are connected by a common scheme or plan. The state argued that consolidation was permissible because the indictments were "logically related" and the proof between the two cases was "entirely overlapping." See State v. Dewhitt, 276 Or.App. 373, 383, 368 P.3d 27, rev den, 359 Or. 667 (2016) ("[J]oinder under ORS 132.560(1)(b)(C) is appropriate if 'the joined counts [or charges] are logically related, and there is a large area of overlapping proof between them." (Quoting State v. Johnson, 199 Or.App. 305, 317, 111 P.3d 784, rev den, 339 Or. 701 (2005).)).

The state represented that it intended to present evidence that defendant solicited Hwang to kill his brothers "so that they could not be witnesses against him at his murder trial." Thus, in the state's view, evidence from the homicide case would be admissible in the solicitation case to prove defendant's motive for attempting to hire Hwang to kill adverse witnesses expected to testify in the homicide case. The state also argued that evidence from the solicitation case would be admissible in the homicide case because it is "highly probative of his guilt." Defendant did not take a position on the consolidation motion, and the trial court granted the motion.

Ten months later, defendant filed a notice of self-defense in the homicide case and moved to sever the two cases. The state had focused on ORS 132.560(1)(b)(C) in its original consolidation motion and defendant similarly focused on that provision. Defendant argued that consolidation was improper under that provision because the charges "do not contain large areas of overlapping evidence." See State v. Thompson, 328 Or. 248, 255-57, 971 P.2d 879, cert den, 527 U.S. 1042 (1999) (reviewing trial court's denial of defendant's motion to sever on the grounds that the charges were improperly joined).

Defendant also argued that he would suffer substantial prejudice if the charges were consolidated. See ORS 132.560(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."). Defendant argued generally that "where a defendant wishes to testify as to one charge, but not to another, severance is proper"; that because evidence "would not be mutually admissible in separate trials," the jury might conclude that defendant is guilty of one offense based on the evidence presented of another offense; and that the evidence is not "so sufficiently simple and distinct that it mitigates the dangers created by joinder."

The state opposed the motion, relying on the arguments that it made in its motion to consolidate, namely that consolidation was appropriate because the indictments were logically related and the proof between the two cases was largely overlapping, and that defendant would not suffer substantial prejudice because evidence from both cases would be admissible in separate trials.

The trial court concluded that the indictments were properly consolidated. In doing so, the court relied on ORS 132.560(1)(b)(A), which allows consolidation when the offenses are "[o]f the same or similar character."^[1] In reaching that conclusion, the court considered "the temporal proximity of the acts, similarities in the elements of the offenses, whether the trials will involve similar evidence or evidentiary overlap, and whether the charges involved the same or similar victim, intent, modus operandi, or acts." State v. Gialloreto, 301 Or.App. 585, 591,457 P.3d 1105 (2019), rev den, 366 Or. 827 (2020) (outlining factors relevant to joinder based on ORS 132.560(1)(b)(A)). The trial court determined that "[t]he charges are very similar to each other and involve the same victim[.] * * * Evidence of the solicitation will be admissible in the murder and attempted murder trial to prove intent, motive, and to refute self-defense." With respect to prejudice, the trial court determined that "there is little danger of unfair prejudice to the defendant by joining these trials because evidence in one case will be admissible in the other. Either way, the jury will hear the facts in both cases." Based on those determinations, the trial court denied defendant's motion to sever.

Prior to testifying, defendant renewed his motion to sever, arguing that consolidation deprived him of his right to choose to testify in the homicide case and to remain silent in the solicitation case, and that "it would be in [defendant's] best interests to testify in the homicide, but not his best interest to testify in [the] solicitation case." The state reiterated the reasons that the court initially denied defendant's motion to sever and argued that, if defendant testified about the homicide case, "the state would certainly be entitled to cross-examine him about motive and about the things he did later to suggest his consciousness of guilt." The court denied defendant's motion.

Defendant appeals, arguing that the trial court erred in denying his motion to sever because (1) the trial court incorrectly concluded that the cases satisfied the requirements for consolidation set out in ORS 132.560(1) (b) and (2) the trial court incorrectly concluded that severance was not warranted because defendant would not suffer substantial prejudice from the consolidation.^[2] See State v. Brown, 326 Or.App. 46, 49, 531 P.3d 178, rev den, 371 Or. 332 (2023) (explaining that a defendant may challenge the consolidation of cases by moving to sever, arguing that the requirements for consolidation are not met and/or that the defendant is substantially prejudiced by consolidation).

So framed, we begin with the question whether the trial court properly consolidated the charging instruments, which is a legal determination that we review for errors of law. Dewhitt, 276 Or.App. at 380. Under ORS 132.560(2), a court may consolidate two or more charging instruments if the charges meet any of the statutory bases for joinder listed in paragraph (1)(b), which provides that:

"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."

That statute "is to be broadly construed in favor of initial joinder." Dewhitt, 276 Or.App. at 382 (internal quotation marks and citation omitted).

At the outset, we note that the parties focus on different parts of ORS 132.560. For his part, defendant argues that the trial court erroneously applied the standard under subparagraph (1)(b)(A) (the provision upon which the trial...