State v. Tidwell
Case #: A145581
Ortega, P. J. for the Court; Nakamoto, P.J.; and De Muniz, S. J. dissented
Full Text Opinion: http://www.publications.ojd.state.or.us/docs/A145581.pdf
Criminal Procedure: Upon a showing that consolidation would cause substantial prejudice, the court will sever the multiple counts.
Defendant appealed two DUII convictions and a denial of his motion to sever the cases. Defendant was charged with two separate counts of DUII. Upon States’ motion, the trial court granted consolidation. Defendant moved to have the cases severed and heard separately. The trial court held that the cases could be consolidated. Defendant was subsequently convicted on both counts of DUII. ORS 132.560 allows the court to consolidate two or more cases if the offense is alleged to have been committed by the same person and is of the same or similar character. Consolidation is prohibited if Defendant would be substantially prejudiced. However, if evidence is “mutually admissible” or “sufficiently simple and distinct”, substantial prejudice has not been established. Defendant argued that evidence would not be mutually admissible in both cases and therefore would improperly influence the jury. The Court held that even if the evidence was not mutually admissible it was sufficiently simple and distinct. Any prejudice created by consolidation could be taken care of through jury instruction. Therefore, Defendant failed to establish a substantial prejudice. Affirmed. De Muniz, S. J. dissented, and held that the Defendant suffered substantial prejudice due to the similarity of the evidence presented and the failure of the trial court to properly instruct the jury.