State v. Delaney

                                      554

  Argued and submitted May 5, decision of Court of Appeals and judgment of
                 circuit court affirmed December 22, 2022


                   STATE OF OREGON,
                   Respondent on Review,
                              v.
              ANTHONY RANDALL DELANEY,
                    Petitioner on Review.
          (CC 17CR15134) (CA A165686) (SC S068908)
                                   

    Defendant was charged with multiple sex offenses arising from two sepa-
rate incidents, each involving a different victim. Before trial, defendant moved to
sever the charges relating to each victim, arguing under ORS 132.560(3) that he
would be substantially prejudiced by joinder of those charges because the state’s
summary of the evidence that it expected to present at trial included evidence
that one victim had reported defendant’s conduct because she had heard that
defendant had similarly harmed other women. The prosecutor then clarified the
witnesses’ prior statements about her motivation for coming forward in a way
that made no mention of having heard that defendant had harmed other women,
and defendant did not offer another theory of substantial prejudice. The trial
court denied defendant’s motion, witness did not offer the testimony that defen-
dant had identified as substantially prejudicial, and a jury convicted defendant
of all the charged offenses. The Court of Appeals affirmed in a written opinion.
Held: ORS 132.560(3) requires the moving party to identify a case-specific theory
of how a joint trial will be substantially prejudicial. Whether the identified harm
is substantially prejudicial is a legal question that may require the trial court
to make certain preliminary determinations about the nature of the expected
evidence. Here, the trial court did not err in rejecting defendant’s theory of sub-
stantial prejudice because the record permitted the court to infer that the state
would not in fact offer the identified prejudicial evidence.
    The decision of the Court of Appeals and the judgment of the circuit court
are affirmed.



    On review from the Court of Appeals.*
   Andrew D. Robinson, Deputy Public Defender, Office of
Public Defense Services, Salem, argued the cause and filed
the briefs for petitioner on review. Also on the briefs was
Ernest G. Lannet, Chief Defender.
   Jonathan N. Schildt, Assistant Attorney General, Salem,
argued the cause and filed the brief for respondent on
______________
    * On appeal from the Clackamas County Circuit Court, Michael C. Wetzel,
Judge. 

, 

 (2021).
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review. Also on the brief were Ellen F. Rosenblum, Attorney
General, and Benjamin Gutman, Solicitor General.
   Before Walters, Chief Justice, and Balmer, Flynn, Duncan,
Nelson, Garrett, Justices, and Linder, Senior Judge, Justice
pro tempore.**
    FLYNN, J.
   The decision of the Court of Appeals and the judgment of
the circuit court are affirmed.




______________
   ** DeHoog, J., did not participate in the consideration or decision of this case.
556                                         State v. Delaney

        FLYNN, J.
         Defendant appeals his convictions on multiple sex
offenses arising from two separate incidents, each involving
a different victim. He challenges the trial court’s refusal to
sever the counts involving the first incident from the counts
involving the second incident. At issue is the proper applica-
tion of ORS 132.560(3), which describes actions that a trial
court “may order” when “it appears, upon motion, that the
state or defendant is substantially prejudiced by a joinder of
offenses” that otherwise satisfy the requirements for join-
ing multiple offenses. Defendant contends that the state’s
pretrial description of the evidence that it expected to offer
demonstrated that defendant would be substantially prej-
udiced by a joint trial, and he contends that the prejudice
that he identified required the court to sever the counts. The
Court of Appeals affirmed the judgment, and we allowed
review to address the type of showing that the legislature
intended to require when it adopted the “substantially prej-
udiced” standard.
         As we will explain, a defendant seeking severance
under ORS 132.560(3) must identify a case-specific theory
of substantial prejudice that is more than the prejudice
that is inherent whenever joined charges allow the jury
to hear that the defendant may have committed other bad
acts. And whether a defendant has identified a case-specific
theory that meets the “substantially prejudiced” standard
is a question of law that the appellate court reviews with-
out deference to the trial court. Applying those standards,
we conclude that defendant has failed to demonstrate that
the trial court erred in denying defendant’s motion to sever.
Accordingly, we affirm.
                         I.   FACTS
         The state charged defendant with six sex offenses
in a single indictment. The first three counts—first-degree
rape (ORS 163.375), first-degree sexual abuse (ORS 163.427),
and second-degree sexual abuse (ORS 163.425)—related to
a 2014 incident involving M. The second three counts—first-
degree sodomy (ORS 163.405), first-degree sexual abuse,
and second-degree sexual abuse—related to a 2016 incident
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involving L. Before trial, defendant moved to sever the
charges related to each incident and corresponding victim,
arguing under ORS 132.560(3) that joinder of the charges
would cause substantial prejudice because the evidence of
each incident would improperly influence the jury regarding
the other.
         The trial court held a hearing and asked the state
to describe the facts of both incidents in the light most favor-
able to the state.1 The state first summarized the evidence
that it expected to offer with respect to the 2014 incident
involving M. The state explained that M met defendant
through mutual friends and later contacted defendant
so that defendant could help M sell her car. According to
the state, M would testify that she went to a property in
Estacada, where defendant kept a small trailer and a boat.
M later accepted defendant’s suggestion that she take a nap
in his boat and continued sleeping on the boat when defen-
dant told her that he was taking it out onto the river.
         When M later woke up, her pants were down, and
defendant was raping her. M did not react because she was
afraid of defendant, and they were alone on the river. M pre-
tended to sleep until after defendant finished, and then M
pretended to wake up. Defendant and M later returned to
shore, and M did not have any other significant contact with
defendant. M delayed reporting the incident for over two
years. According to the state, M’s explanation for why she
ultimately came forward was that she had “heard allegedly
that he’s done similar things to other women.”
         The state then summarized the evidence relating
to L, including L’s expected testimony about defendant sex-
ually assaulting her in 2016. The state explained that L was
acquainted with defendant and was walking alone when
defendant pulled over and offered her a ride to her destina-
tion. When L accepted the ride, defendant instead drove L

    1
      ORS 132.560 does not prescribe a procedure for trial courts to follow when
considering a motion to sever joined charges. But the court’s instruction that the
prosecutor describe the evidence that the state expected to present at trial in the
light most favorable to the state was an effective way for the court in this case to
assess defendant’s argument that he would be prejudiced by the joinder of multi-
ple charges.
558                                          State v. Delaney

to the property in Estacada after telling L that he needed
to “go up there” and “do a few things.” Although L initially
refused to go into the trailer, defendant told her that he
would be at least an hour, and L agreed to wait inside defen-
dant’s trailer.
         Later, defendant told L that he wanted her to per-
form oral sex. Defendant pointed a firearm at L and hit
her in the head, and she acquiesced to performing oral sex.
Afterward, defendant would not let L leave his trailer to go
to the bathroom, which was outside, without supervising
her. When defendant later fell asleep, L fled from the trailer,
leaving behind her purse. She ran toward town until she
encountered an older man and told him that she had just
been sexually assaulted and needed to make a phone call.
Either L or the man contacted the police that day, and L
later provided a statement describing the assault. As part of
L’s report, law enforcement took photographs of L’s injuries,
which included a head injury and bruising on her arms.
          Based on the state’s description of the evidence,
defendant argued that he would be substantially prejudiced
by the joinder of charges arising from the two incidents and
that the court should exercise its discretion to sever the
charges. Specifically, defendant argued that he would be
prejudiced by “cross-pollination of prior bad acts, as motiva-
tion,” if each witness were to testify that she “came forward
because [she] heard about all these prior bad acts that he
did on these other women.” And he argued that the prejudice
could not be adequately addressed by a jury instruction.
         After defendant’s argument, the prosecutor con-
sulted police reports that described the previous statements
made by M and L and offered more background “to clar-
ify just a couple things with regard to the facts.” The state
then explained that the victims reported defendant’s con-
duct because they were concerned that defendant would
harm other women in the future: “I mean, [M and L] do talk
about the concerns that the defendant, you know, may do
this again in the future. And so that is part of the reason
that they came forward.” The prosecutor further explained
that M had told law enforcement that she wanted to report
defendant’s assault because she had heard that defendant
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was dating her friend and M was concerned that defendant
might harm that friend.2
         The trial court denied defendant’s motion to sever,
and the case proceeded to trial. The trial testimony from M
and L described the alleged attacks much as the prosecu-
tor’s summary had predicted, but neither witness testified
that she had heard about defendant committing bad acts
against other women.3 Ultimately, the jury found defendant
guilty of all the charged offenses.
          Defendant appealed, challenging the trial court’s
denial of his motion to sever, and the Court of Appeals
affirmed in a written decision. State v. Delaney, 

, 

 (2021). The court concluded that defendant
was not substantially prejudiced, because the evidence of
defendant’s conduct towards M and L “was sufficiently sim-
ple and distinct to mitigate the dangers created by a joint
trial.” 

. In other words, the court concluded that,
because the charges “arose from different incidents that
occurred at different times and places and involved differ-
ent victims, the availability of proper jury instructions and
limiting the state’s cross-examination would have cured any
prejudice resulting from joinder.” 

 (internal quota-
tion marks omitted).
        In his briefing to this court, defendant criticizes
the Court of Appeals’ reliance on a “simple and distinct”
evidence inquiry for denying severance, and he again
argues that the predicted testimony about defendant’s
     2
       As described below, the parties disagree on the significance of the state’s
“clarification.” The state argues that the prosecutor was correcting a previous
misstatement and clarifying that M came forward because of a prospective con-
cern that defendant would harm other women in the future. Defendant disagrees
and argues that the state was providing additional information rather than cor-
recting a prior misstatement.
     3
       The Court of Appeals observed, and we agree, that the state’s description
of the evidence referred only to M having come forward because she “heard” that
defendant had harmed other women. State v. Delaney, 

, 

 (2021). We also note that the state’s description of both victims’ testi-
mony included a reference to being afraid of defendant because they had heard
that defendant was “scary” or “dangerous,” that he was involved in a gang, and
that he always carried weapons with him. In this court, defendant argues only
that he could have been prejudiced from M testifying that she was motivated by
an awareness of prior bad acts against other women, and we limit our analysis to
that theory.
560                                               State v. Delaney

reputation for sexual violence was so prejudicial that the
trial court abused its discretion when it denied his motion to
sever.
                         II. ANALYSIS
         The rules for joinder in Oregon are governed by
statute. ORS 132.560 describes both the standard for join-
ing multiple charges in the same charging instrument and
the requirement for granting relief despite proper joinder. In
relevant part, ORS 132.560(1) provides:
      “A charging instrument must charge but one offense,
   and in one form only, except that:

      “* * * * *

      “(b) 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 con-
   nected together or constituting parts of a common scheme
   or plan.”

And ORS 132.560(3) sets out severance or other relief from
joinder:
      “(3) If it appears, upon motion, that the state or defen-
   dant 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.”

         Because there is no dispute that the charges against
defendant were properly joined in the same indictment, our
focus is on the severance provision set out in subsection (3),
and ultimately on whether the trial court was required to
grant defendant’s motion to sever the charges related to
M from the charges related to L. That ultimate question,
however, encompasses several component questions that we
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also must resolve. Most significantly, the parties disagree
about the meaning of “substantial prejudice” and the cir-
cumstances under which a trial court is required to sever
joined charges. Our resolution of that dispute, however,
turns on additional questions about how a reviewing court
determines whether that standard was met.
         All of those disputes present questions of statu-
tory construction that we resolve by employing our well-
established analytical framework, as set out in PGE v.
Bureau of Labor and Industries, 

, 

(1993), and modified in State v. Gaines, 

, 

 (2009). Under that framework, we examine the text and
context of ORS 132.560, including our prior cases interpret-
ing that statute, and we consider legislative history to the
extent that it aids the analysis—all with the goal of deter-
mining the intent of the legislature. See Gaines, 

; State v. Cloutier, 

, 

 (2011)
(“Our analysis of [the statute] is also informed by this court’s
prior construction of that statute or its predecessors.”).
          For the reasons that follow, we conclude that
whether the joinder of multiple charges substantially preju-
dices a party is a question of law and, thus, that an appellate
court reviews the question without deference to the determi-
nation of the trial court. We emphasize, however, that that
legal question is a circumstance-dependent inquiry; that
relevant circumstances can include whether joinder would
permit a jury to hear otherwise-inadmissible evidence; and
that case-specific circumstances may require severance
even if the evidence of the joined charges is simple and
distinct.
          We also conclude that, in this case, the trial court
did not err in rejecting defendant’s theory of substantial
prejudice because the record permitted the court to infer
that the state would not in fact offer the identified preju-
dicial evidence. Accordingly, the judgment of conviction
is affirmed. The decision of the Court of Appeals is also
affirmed, although we take this opportunity to clarify the
role of a “simple and distinct” inquiry when an Oregon court
considers a party’s claim of substantial prejudice caused by
joinder of unrelated offenses.
562                                                        State v. Delaney

A.    Brief Overview of Oregon Joinder Law
         Oregon law has permitted the joinder of certain
offenses for indictment and trial since 1933.4 See State v.
Warren, 

, 

 (2018) (describing
Or Laws 1933, ch 40, § 1; OCLA § 26-711 (1940), recodified
at ORS 132.560 (1953), amended by Or Laws 1989, ch 842,
§ 1, amended by Or Laws 1993, ch 278, § 1). But the modern
joinder provisions at issue here are primarily the product of
a 1989 amendment through House Bill (HB) 2251. Or Laws
1989, ch 842, § 1. That amendment expanded the bases for
joinder but also created a process for courts to address cases
in which the joining of multiple charges caused prejudice to
either party. Or Laws 1989, ch 842, § 1; see also Warren, 

 (explaining that the “purpose of the 1989 amend-
ment was to expand the bases for joinder”). The legislature
borrowed wording for the new provisions from the federal
rules that govern the joinder of criminal offenses and relief
from prejudicial joinder, FRCrP 8(a)5 and FRCrP 14.6 See
Exhibit R, House Committee on Judiciary, HB 2251, Jan 14,
1989 (a staff measure summary indicating that “HB 2251
would bring Oregon law into conformance with Rule 8 of the
Federal Rules of Criminal Procedure which allows joinder of
    4
      Until then, Oregon law included a complete prohibition on the joinder of
charges and allowed the state to charge the defendant with only one crime in
the indictment, “except that where the crime may be committed by the use of
different means, the indictment may allege the means in the alternative.” See
General Laws of Oregon, Crim Code, ch VIII, title I, § 72, p 350 (Deady & Lane
1843-1872); The Codes and General Laws of Oregon, ch VIII, title I, § 1273 (Hill
1887); The Codes and Statutes of Oregon, title XVIII, ch VIII, § 1308 (Bellinger
& Cotton 1901); Lord’s Oregon Laws, title XVIII, ch VII, § 1442 (1910); Oregon
Laws, title XVIII, ch VII, § 1442 (1920); Oregon Code, title XIII, ch 7, § 13-708
(1930).
    5
      FRCrP 8(a) (1989) provided:
    “Joinder of Offenses. Two or more offenses may be charged in the same
    indictment or information in a separate count for each offense if the offenses
    charged, whether felonies or misdemeanors or both, are of the same or sim-
    ilar character or are based on the same act or transaction or on two or more
    acts or transactions connected together or constituting parts of a common
    scheme or plan.”
    6
      FRCrP 14 (1989) provided:
    “Relief from Prejudicial Joinder. If it appears that a defendant or the govern-
    ment is prejudiced by a joinder of offenses or of defendants in an indictment
    or information or by such joinder for trial together, the court may order an
    election or separate trials or counts, grant a severance of defendants or pro-
    vide whatever other relief justice requires.”
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offenses”); Exhibit LL, Senate Committee on Judiciary, HB
2251, June 7, 1989 (same).
         Ten years later, the legislature amended ORS
132.560 again, changing “prejudiced” to “substantially prej-
udiced.” Or Laws 1999, ch 1040, § 17. That amendment fol-
lowed this court’s decision in State v. Miller, 

,

 (1998), which the Oregon District Attorneys
Association (ODAA) argued was confusing some trial courts
about the threshold for what constituted “prejudice” that jus-
tified severance of joined charges. Tape Recording, Senate
Committee on Judiciary, HB 3374, June 30, 1999, Tape 261,
Side A (testimony of Marion County District Attorney Dale
Penn, urging an amendment to “bring[ ] in the term that
the federal courts and the Court of Appeals have always
interpreted this to say, and that is ‘substantial prejudice’ ”
because trial judges “in some counties” have read Miller and
are “trying to sever in more cases”). And the 1999 legislative
history again highlights an intent that Oregon joinder deci-
sions align with the federal decisions interpreting FRCrP 8
and FRCrP 14. 

B.   Whether a party is “substantially prejudiced” by joinder
     is a legal determination.
         Although the state contends that we should review
the denial of a motion to sever for abuse of discretion, we have
previously held otherwise. In Miller, this court explained
that evaluating a motion to sever under ORS 132.560(3)
involves two distinct inquiries: (1) “whether the facts stated
in the motion show the existence of prejudice”; and (2) if so,
“the appropriate form of relief.” 

. We concluded
that the first inquiry “is a legal determination that is sub-
ject to appellate review for errors of law,” while the second
“is a choice that the statute commits to the trial court’s dis-
cretion.” 

         The state acknowledges that holding in Miller but
invites us to reconsider whether the determination of sub-
stantial prejudice under ORS 132.560(3) should be a legal
determination, in light of the amendments to that provision
by the 1999 legislature. The state points to indications that
the 1999 legislature intended to adopt the federal approach
to review of motions to sever, which—according to the
564                                           State v. Delaney

state—involved reviewing determinations of prejudice for
an abuse of discretion. For present purposes, we assume,
without necessarily agreeing, that is a correct understand-
ing of the federal case law. Even so, we decline to disavow
our conclusion in Miller for two reasons.
         First, the text of the statute itself continues to sug-
gest that the legislature contemplated a two-step analyti-
cal process: The statute specifies that, “[i]f it appears” that
a party “is substantially prejudiced,” then “the court may
order” relief. ORS 132.560(3) (emphasis added). And because
the legislature did not amend that wording when it changed
“prejudiced” to “substantially prejudiced,” nothing in the
1999 amendments alters our conclusion in Miller that the
first inquiry is a legal determination. See Miller, 

 (explaining that “[t]he statute does not indicate that the
trial court’s determination about whether joinder of offenses
causes prejudice is a discretionary choice”). Although the
1999 legislature amended ORS 132.560 in response to this
court’s decision in Miller, as described above, the legisla-
ture’s concern was with confusion in the trial courts about
the “prejudice” threshold for severing joined charges. 370
Or at 563 (quoting testimony of Dale Penn). Indeed, there
was no testimony suggesting concern with Miller’s conclu-
sion that the prejudice inquiry is a legal determination; pro-
ponents of the measure expressly endorsed the holding of
Miller as correct. See Tape Recording, Senate Committee on
Judiciary, HB 3374, June 30, 1999, Tape 261, Side A (testi-
mony of Dale Penn, agreeing with this court’s holding “that
severance was not appropriate; joinder was the right thing
to do”).
         Second, in multiple decisions since Miller, this court
has continued to review the question of prejudice under
ORS 132.560(3) as a question of law—including as recently
as 2019. See State v. Taylor, 

, 

,
cert den, ___ US ___, 

 (2019) (explaining that
“[w]e review for errors of law the trial court’s determination
that the joinder will not result in substantial prejudice”);
see also State v. Barone, 

, 

 (1999),
cert den, 

 (2000) (same); State v. Thompson,

, 

, cert den, 

 (1999)
(same). For those reasons, we decline to reconsider the
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standard by which we review substantial prejudice under
ORS 132.560(3). See Farmers Ins. Co. v. Mowry, 

, 

 (2011) (explaining that this court follows
its prior constructions of a statute as a matter of stare deci-
sis and assumes that issues considered in those cases were
correctly decided).
         Thus, we adhere to our conclusion in Miller that
we review as a matter of law the question of whether the
harm that a party has identified from the joinder of multiple
charges rises to the level of substantial prejudice. With that
question resolved, we turn to the more complicated dispute
regarding the kind of harm that will rise to the level of sub-
stantial prejudice.
C. “Substantial Prejudice” Under ORS 132.560
          Under ORS 132.560(3), severance of joined charges
is permitted when it appears that a party is “substantially
prejudiced” by joinder. Defendant argues that the defendant
is “substantially prejudiced” by joinder when evidence of one
unrelated charge may improperly influence the jury regard-
ing another charge, even when the evidence of each charge
is so “simple and distinct” that the jury will not be confused.
Defendant references Black’s Law Dictionary, which defines
“prejudice” as “[d]amage or detriment to one’s legal rights or
claims.” Black’s 1428 (11th ed 2019). Defendant then notes
that the text of ORS 132.560(3) does not limit or qualify the
kinds of “prejudice” that can justify severance. Accordingly,
defendant argues, the legislature intended to permit sever-
ance when it appears that joinder would cause a defendant
to suffer any kind of detriment to their defense at trial, if
that detriment is substantial.
         The state responds that the legislature intended to
adopt the federal standards for joinder and severance, and it
urges us to conclude that the legislature understood the fed-
eral standard to equate “prejudice” that requires the sever-
ance of joined charges with prejudice that impairs the defen-
dant’s right to a fair trial. The state emphasizes this court’s
statement in Miller that “[t]he ‘prejudice’ standard in ORS
132.560(3) demonstrates that the legislature intended to
authorize the court to safeguard the parties from potential
566                                           State v. Delaney

injury or harm to their interests in a fair trial,” 

 (emphasis omitted), which the state views as consistent
with federal joinder law. The state adds that, under this
court’s decisions, the defendant must identify case-specific
prejudice that will result from joinder when moving to sever
charges that were joined under ORS 132.560(1). And the
state argues that, when evidence of multiple charges is suf-
ficiently “simple and distinct” to “allow the jury to compart-
mentalize the evidence of each offense,” the trial court does
not err by denying the defendant’s motion to sever.

          Both parties are correct in part. Our prior deci-
sions about ORS 132.560(3) and the extensive legislative
history identify three key principles for evaluating whether
the defendant was substantially prejudiced by the joinder of
unrelated charges. First, claims of prejudice arising from
joinder are evaluated on a “case-by-case” basis to determine
whether the defendant has identified the kind of potential
injury or harm that threatens the defendant’s interest in a
fair trial. Miller, 

. Second, to establish that
the defendant was prejudiced by joinder, the defendant must
articulate a case-specific theory of prejudice. Thompson, 

. And third, the defendant’s theory must demon-
strate a degree of prejudice beyond the prejudice that is
inherent to the joinder of unrelated charges. Miller, 

.

         This court first considered a claim that the defen-
dant was prejudiced by joinder of charges in Miller, in which
the defendant claimed that he was prejudiced by the joinder
of multiple sex offenses involving two separate victims. 

. In Miller, we explained that the statutory “prej-
udice” standard is intended to “safeguard the parties from
potential injury or harm to their interests in a fair trial.”

 (emphasis in original). Those interests include
“the interest in a trial conducted efficiently, and in accor-
dance with all applicable laws,” and the interest “in a deci-
sion based on a dispassionate consideration of the evidence
rather than bias, emotion, or other improper criteria.” 

. But we rejected the state’s argument that we should
construe the “prejudice” standard of former ORS 132.560(3)
as a “substantial prejudice” standard. 

.
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         Applying those general standards, we concluded
that the defendant had not established prejudice under
the statute, and we rejected a definition of prejudice that
is very similar to the standard that defendant urges us to
apply in this case. The defendant in Miller argued that prej-
udice is inherent when unrelated violent crimes are joined
if the evidence of the unrelated charges would not be cross-
admissible in separate trials. Id. at 625. The defendant also
argued that he was prejudiced because he would testify
in his own defense regarding some charges but might not
testify regarding the other counts. Id. He further argued
that this court “should conclude categorically that prejudice
exists” under those circumstances. Id. at 629.
         We rejected those arguments. Id. at 635. First, we
rejected the defendant’s “categorical approach” to claims of
prejudice resulting from the joinder of unrelated crimes and
instead explained that the prejudice analysis “must flow
from a case-by-case assessment” rather than a “one size fits
all” approach. Id. at 629. In other words, and as pertinent
to our inquiry here, we concluded that defendants cannot
demonstrate, as a matter of law, that they are “prejudiced”
solely on the basis that the joined charges are unrelated vio-
lent offenses or solely on the basis that evidence will be intro-
duced that would not be cross-admissible in separate trials.7
We recognized that joinder of unrelated claims presents an
inherent risk of prejudice. See id. at 634 (explaining that
“there was at least some degree of danger that admitting
evidence of [the] defendant’s multiple offenses in a joint trial

    7
      Defendant understands Miller to stand for the proposition there is no “cog-
nizable prejudice” when the identified harm from joinder is “the admission of evi-
dence to prove one charge that would be inadmissible other-acts evidence under
OEC 404(3) in a separate trial on another charge.” He understands the Court
of Appeals also to have read Miller for the proposition stated above, citing six
decisions including State v. Murphy, 

, 

 (2020),
rev den, 

 (2021), and State v. Dewhitt, 

, 

, rev den, 

 (2016). We decline the invitation to disavow Miller
because the proposition that is of concern to defendant is not found in Miller.
Rather, we explained that “the trial court [had] correctly considered whether evi-
dence of defendant’s multiple criminal acts would be admissible in separate trials
on the charged offenses,” because that “inquiry is probative, at least to some
degree, of whether joinder causes prejudice to [the] defendant.” 

.
To the extent that Court of Appeals’ decisions could be understood as suggesting
that cross-admissibility is never cognizable prejudice, that suggestion is contrary
to Miller.
568                                            State v. Delaney

would tempt the jury to decide the case on the basis of the
defendant’s perceived propensity to commit crimes”). But we
also noted that categorically allowing severance when the
evidence of unrelated charges would not be cross-admissible
in separate trials “would undermine the legislature’s policy
choice to authorize joinder of unrelated charges for trial.”

.
         In Thompson and Barone, we reiterated that a suc-
cessful claim of prejudice under ORS 132.560(3) must iden-
tify prejudice based on the defendant’s case. In Thompson,
we noted that the defendant “essentially argue[d] that the
jury’s decision was not based on dispassionate consideration
of the evidence.” 

. But because the defendant
“[did] not support his claim of error with arguments based
on the facts of his case,” we concluded that the “defendant
ha[d] failed to demonstrate he was prejudiced, within the
meaning of ORS 132.560(3).” 

          We again rejected the defendant’s claim of preju-
dice in Barone because the defendant’s theory of prejudice
was not case-specific. 

. Instead, the defendant
argued that it was “obvious” that joinder of charges for sep-
arate murders was “highly inflammatory” and allowed the
state to make the defendant look guilty because of other
murders, rather than being “required to prove each case on
its merits.” 

 In rejecting the defendant’s claim, we empha-
sized that such general arguments “could be made in any
case in which charges are joined.” 

 Accordingly, we con-
cluded that “[a]bsent an argument of prejudice related to the
specific facts of [the] case * * * [the] defendant [had] failed to
demonstrate that he was prejudiced within the meaning of
ORS 132.560(3).” 

        Although Miller, Thompson, and Barone were all
decided under the 1989 version of ORS 132.560(3), Taylor
was not. In that more recent case, we again emphasized
the requirement of a case-specific theory of prejudice. We
explained that the defendant’s argument that “the jurors
will convict a defendant based, not upon the evidence, but
upon their perception of the defendant’s bad character,” was
a general concern of prejudice and not specific to the defen-
dant’s case. 364 Or at 379. And because the defendant had
Cite as 

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not offered a case-specific theory of prejudice, we concluded
that the defendant had failed to demonstrate that he was
“substantially prejudiced” by joinder. 

         The legislative history of ORS 132.560(3) further
illuminates what kind of joinder-related detriment the leg-
islature intended would rise to the level of substantial prej-
udice and trigger a right to relief. As noted above, the legis-
lature amended ORS 132.560 through HB 2251 by adding
language borrowed from FRCrP 8(a) and FRCrP 14. And it
is undisputed that the purpose of the amendment was to
adopt the federal approach to joinder. The legislative history
of HB 2251 is replete with references to the intent to bring
Oregon joinder law into conformance with federal law. See,
e.g., Exhibit R, House Committee on Judiciary, HB 2251,
Jan 14, 1989 (Staff Measure Summary); see also Warren,

 (agreeing with the state’s argument that “the
legislature intended to adopt the substantive portion of the
federal rules insofar as federal law had expanded the scope
of what offenses may [be] joined in a single indictment”
(brackets in original)).
         The legislative history also includes a request from
ODAA for the legislature to adopt, as legislative history,
federal decisions interpreting the Federal Rules of Criminal
Procedure to guide Oregon courts in interpreting ORS
132.560.8 Exhibits H & I, House Committee on Judiciary,
Subcommittee on Crime and Corrections, HB 2251, Jan 13,
1989 (ODAA letter and memo); Tape Recording, House
Committee on Judiciary, Subcommittee on Crime and
Corrections, HB 2251, Jan 13, 1989, Tape 1, Side B (tes-
timony of Dale Penn). ODAA specifically referenced the
    8
      The federal decisions referenced by ODAA in the legislative history are:
United States v. Disla, 805 F2d 1340 (9th Cir 1986); United States v. Evans, 796
F2d 264 (9th Cir 1986); United States v. Lewis, 787 F2d 1318, opinion amended
on denial of reh’g, 798 F2d 1250 (9th Cir 1986); United States v. Roberts, 783 F2d
767 (9th Cir 1985); United States v. Irvine, 756 F2d 708 (9th Cir 1985); United
States v. Nolan, 700 F2d 479 (9th Cir), cert den, 

 (1983); United States
v. Anderson, 642 F2d 281 (9th Cir 1981); United States v. Armstrong, 621 F2d
951 (9th Cir 1980); United States v. Reed, 620 F2d 709 (9th Cir), cert den, 

 (1980); United States v. Bronco, 597 F2d 1300 (9th Cir 1979); United States v.
Foutz, 540 F2d 733 (4th Cir 1976); United States v. Ragghianti, 527 F2d 586 (9th
Cir 1975); United States v. Olson, 504 F2d 1222 (9th Cir 1974); Baker v. United
States, 401 F2d 958 (DC Cir 1968); and Drew v. United States, 331 F2d 85 (DC Cir
1964).
570                                                         State v. Delaney

Ninth Circuit’s analysis of joinder law as a model for Oregon
courts. Tape Recording, Senate Committee on Judiciary,
HB 2251, June 7, 1989, Tape 228, Side A (testimony of Dale
Penn). And Chair Tom Mason explained that HB 2251 would
adopt the federal interpretation of FRCrP 8 and FrCrP 14
and referenced three decisions that had interpreted join-
der rules as examples of that approach.9 Tape Recording,
House Committee on Judiciary, Subcommittee on Crime
and Corrections, HB 2251, Jan 13, 1989, Tape 2, Side A.
        The 1999 legislature reiterated that intent. As
explained above, the 1999 legislature approved HB 3374,
which, among other things, amended ORS 132.560(3) by
changing “prejudiced” to “substantially prejudiced.” Or Laws
1999, ch 1040, § 17. That change was requested by ODAA
because our decision in Miller had contradicted prior Court
of Appeals decisions that had relied on federal decisions and
reviewed motions to sever pursuant to ORS 132.560(3) for
“substantial prejudice.”10 Tape Recording, Senate Committee
on Judiciary, HB 3374, June 29, 1999, Tape 261, Side A
(testimony of Dale Penn). ODAA argued that by adopting
the “substantial prejudice” standard, Oregon courts would
interpret ORS 132.560 in conformity with federal decisions,
as the Court of Appeals had. See id. (testimony of Dale
Penn, explaining that “everything was going fine until the
Miller case” because “the Court of Appeals reviewed cases
and adopted [the] federal standards” as the legislature had
intended and urging an amendment adopting “substantial
prejudice” to “bring[ ] in the term that the federal courts and
the Court of Appeals” had used).11
     9
        Those cases are United States v. Weber, 437 F2d 327 (3rd Cir 1970), cert
den, 

 (1971), Drew, 331 F2d 85, and Commonwealth v. Lasch, 464 Pa
573, 

 (1975).
    10
        See, e.g., State v. Meyer, 

, 

 (1991), rev den,

 (1992) (“Under [FRCrP] 14, a denial of severance is reviewed for abuse
of discretion and, in order to prevail, a defendant must show substantial preju-
dice.” (Citing United States v. Werner, 620 F2d 922, 928 (2nd Cir 1980) (emphasis
in original)).
    11
        We note that the decisions cited by ODAA in the legislative history of 1989
HB 2251 did not reference “substantial prejudice.” Of the 15 cases that ODAA
requested that the legislature include in the legislative history, one case had
referenced “untoward prejudice.” Foutz, 540 F2d at 737. Two cases had referred
to “undue prejudice.” Lewis, 787 F2d at 1322; Olson, 504 F2d at 1224. Another
two cases had asked whether joinder “sufficiently prejudiced” the defendant or
Cite as 

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         By adopting the federal framework for analyzing
claims of “prejudice” under FRCrP 14, the legislature would
have understood that it had adopted certain key principles
to assist Oregon courts. Those principles include the recog-
nition that joinder of charges presents an inherent risk of
prejudice to the defendant, United States v. Reed, 620 F2d
709, 712 (9th Cir), cert den, 

 (1980), but that the
decision to permit joinder accepted that risk to some extent,
because “joinder is the rule rather than the exception,”
United States v. Armstrong, 621 F2d 951, 954 (9th Cir 1980).
         In addition, as in Oregon, the federal courts had
rejected categorical approaches to prejudice and instead
evaluated claims of prejudice on a case-by-case basis. See
United States v. Lewis, 787 F2d 1318, 1322, opinion amended
on denial of reh’g, 798 F2d 1250 (9th Cir 1986) (rejecting
per se rule of prejudice based on the cross-admissibility of
evidence and instead embracing case-by-case approach).
But, when the legislature adopted wording from the federal
rules, federal courts had described at least three theories
of prejudice that can justify severing charges. Exhibit I,
House Committee on Judiciary, Subcommittee on Crime
and Corrections, HB 2251, Jan 13, 1989 (statement of Dale
Penn). First, “the jury may confuse and cumulate the evi-
dence, and convict the defendant of one or both crimes when
it would not convict [them] of either if it could keep the evi-
dence properly segregated”; second, “the defendant may be
confounded in presenting defenses, as where [they] desire[ ]
to assert [their] privilege against self-incrimination with
respect to one crime but not the other”; and third, “the jury
may conclude that the defendant is guilty of one crime and
then find [them] guilty of the other because of [their] crim-
inal disposition.”12 United States v. Foutz, 540 F2d 733, 736

was “sufficiently prejudicial” to require severance. Anderson, 642 F2d at 285;
Foutz, 540 F2d at 738. Three cases had considered whether joinder of charges
was “manifestly prejudicial.” Lewis, 787 F2d at 1321; Irvine, 756 F2d at 712;
Armstrong, 621 F2d at 954. It appears that the first reference to “substantial
prejudice” in Oregon case law interpreting ORS 132.560(3) was in Meyer, 

, where the Court of Appeals quoted Werner, 620 F2d at 928.
    12
       Under the second theory of prejudice, the federal courts had concluded that
the defendant must make “a convincing showing that he has both important tes-
timony to give concerning one count and [a] strong need to refrain from testifying
on the other.” Armstrong, 621 F2d at 954.
572                                           State v. Delaney

(4th Cir 1976); see also United States v. Ragghianti, 527 F2d
586, 587 (9th Cir 1975) (describing “three possible kinds of
prejudice” that result from joinder of unrelated offenses as
“(1) the jury may consider that the defendant must be bad
to have been charged with so many things; (2) inadmissi-
ble proof of one offense may be admissible through a joined
offense; and (3) the defendant may wish to testify on one
count but not another” (citing Charles A. Wright, 1 Federal
Practice and Procedure § 222, 437 (1969)).

         The federal cases also identified circumstances
under which joinder of multiple charges was so prejudicial
that the trial court was required to sever. See, e.g., Armstrong,
621 F2d at 954 (explaining that the moving party needed “to
show that joinder was so manifestly prejudicial that it out-
weighed the dominant concern with judicial economy and
compelled exercise of the court’s discretion to sever”); Lewis,
787 F2d at 1321 (explaining that the court will reverse the
denial of a motion to sever charges only when the prejudice
was “of such magnitude that the defendant’s right to a fair
trial was abridged”).

         For example, multiple federal courts had held that
severance was required because the evidence of some joined
charges was much stronger than the evidence of other
unrelated charges. See Ragghianti, 527 F2d at 587-88 (con-
cluding that severance was required where the evidence
for one charge was insufficient to support a conviction and
the trial court granted a post-verdict motion for acquittal
on that charge); Lewis, 787 F2d at 1322-23 (concluding that
severance was required where evidence of prior crimes was
admissible for some but not all charges and the evidence
of one joined charge was “sparse”); Foutz, 540 F2d at 739
(explaining that, because the evidence of one charge was
weaker than the other, there was a “strong likelihood that
the jury found [the defendant] guilty of the second rob-
bery, and then concluded that since he had once robbed the
bank, it was plausible that he had done so before”). From
those federal decisions, the legislature would have under-
stood that the harm from introducing evidence of multiple
bad acts could—under certain circumstances—contribute
to prejudice so substantial that it required severance, even
Cite as 

 (2022)                                  573

if the decision to allow joinder accepted that risk to some
extent.

         The federal decisions also provide guidance as to
a key issue in this case—the relevance of a determination
that the evidence regarding the joined charges is “simple
and distinct.” As explained above, the Court of Appeals
highlighted that consideration in concluding that defendant
was not substantially prejudiced by the joining of charges
here because the evidence of defendant’s conduct towards
M and L “was sufficiently simple and distinct to mitigate
the dangers created by a joint trial.” Delaney, 

. In reaching that conclusion, it relied on earlier cases
in which it had also highlighted the “simple and distinct”
inquiry. See, e.g., State v. Cox, 

, 

 (2015) (describing the Court of Appeals’ “simple
and distinct” inquiry). According to defendant, the Court of
Appeals decisions have erroneously treated that consider-
ation as dispositive of whether a defendant is substantially
prejudiced by the joinder of charges. Although the state con-
tends that defendant overstates the weight that the Court of
Appeals has attributed to the “simple and distinct” inquiry,
we share defendant’s concern that there is at least a risk of
confusion.

          We take this opportunity to clarify that a party
may be substantially prejudiced by the joinder of charges
even where evidence of the joined charges is “simple and dis-
tinct.” For one thing, there are categories of prejudice, which
we understand the legislature to have recognized under
ORS 132.560(3), where the prejudicial effect of the evidence
will have little to do with whether it is “simple and distinct.”
Although federal courts applying FRCrP 14 sometimes con-
sidered whether evidence was “simple and distinct,” they did
so when considering harm based on the admission of evi-
dence that might not have been admissible in separate tri-
als, or in assessing whether such harm could be adequately
addressed with a cautionary instruction. See Drew v. United
States, 331 F2d 85, 91 (DC Cir 1964) (explaining that there
was “no prejudicial effect from joinder when the evidence
of each crime is simple and distinct, even though such evi-
dence might not have been admissible in separate trials”);
574                                           State v. Delaney

Reed, 620 F2d at 712 (concluding that the trial court did not
abuse its discretion when it denied the defendant’s motion
to sever where the evidence was “separate and distinct” and
the “court carefully instructed the jury that it should con-
sider each count separately and that it should segregate evi-
dence” and “provided the jury with separate forms of verdict
for each count”).

          As described above, however, when the legislature
adopted federal joinder law, federal decisions had identi-
fied at least three theories of prejudice arising from joinder:
(1) that the jury will confuse or cumulate the evidence;
(2) that the defendant may be confounded in presenting con-
flicting defenses; and (3) that the jury will conclude that the
defendant is guilty of one crime and therefore guilty of oth-
ers. Foutz, 540 F2d at 736. Although “simple and distinct”
evidence may mitigate prejudice under the first theory, it
often will have no bearing on the second and does little to
address the third.

          As the court in Foutz emphasized, even though the
“simple and distinct” inquiry may mitigate concerns about
confusing and cumulative evidence, it “does not address
itself, however, to the graver mischief possible where the jury,
while limiting its consideration of the evidence to the crime
to which it relates, properly finds the defendant guilty of
one crime but considers that finding probative of [the defen-
dant’s] guilt of another.” Foutz, 540 F2d at 738 n 5. In Foutz,
the federal court concluded that the “simple and distinct”
inquiry was inapplicable to the defendant’s case because the
defendant’s theory of prejudice—that “the jury may conclude
that the defendant is guilty of one crime and then find him
guilty of the other because of his criminal disposition”—
could not be mitigated by “simple and distinct” evidence.
Id. at 736, 738. In rejecting the government’s argument to
the contrary, the court concluded that “[t]he reasons for the
rule which the government invokes are largely inapplicable
and the prejudice to the defendant, arising from the weak-
ness of the government’s one case and strength of the other,
so marked that we cannot presume that the jury adhered to
limiting instructions.” Id. at 738. We agree with the court
in Foutz that there are circumstances in which case-specific
Cite as 

 (2022)                                                   575

prejudice caused by the admission of otherwise inadmissi-
ble propensity evidence is “substantially prejudicial” even if
the evidence is simple and distinct.13 See State v. Skillicorn,

, 

 (2021) (explaining that char-
acter evidence can “(1) impair the opposing party’s ability
to present its case; (2) distract and confuse the factfinder;
(3) prejudice the factfinder against a person; and (4) result in
verdicts based on erroneous assumptions”).
          In sum, when the defendant moves to sever charges,
the trial court must consider “whether the facts stated in
the motion show the existence of prejudice” and, if so, “the
appropriate form of relief.” Miller, 

. At a mini-
mum, that means that the theory of prejudice must describe
more than the prejudice that is an inherent risk of joining
charges. 

; see also Reed, 620 F2d at 712 (explaining
that the “risks” of prejudice that the defendant identified
“are present in any case in which there is joinder of even
remotely similar offenses”). And that theory must describe
prejudice related to the specific circumstances of the case.
Taylor, 

; Barone, 

. Recognized
theories of substantial prejudice include but are not limited
to: (1) that the jury will confuse or cumulate the evidence;
(2) that the defendant may be confounded in presenting con-
flicting defenses; and (3) that the jury will conclude that the
defendant is guilty of one crime and therefore guilty of oth-
ers. Foutz, 540 F2d at 736.
         On review of the denial of a motion to sever, the
reviewing court must determine, as a matter of law, whether
the defendant suffered substantial prejudice because of join-
der. Taylor, 

; Barone, 

. And we
must review for an abuse of discretion any relief that the
trial court provided or declined to provide to address the
substantial prejudice. Miller, 

.

    13
        Although we find Foutz’s discussion of the “simple and distinct” inquiry
persuasive, to the extent that Foutz could be understood as concluding that the
defendant demonstrated prejudice solely on the basis that joint trials would
result in the admission of evidence that would not be cross-admissible in separate
trials, we emphasize that, in Oregon, categorically allowing severance when the
evidence of unrelated charges would not be cross-admissible in separate trials
“would undermine the legislature’s policy choice to authorize joinder of unrelated
charges for trial.” Miller, 

.
576                                                       State v. Delaney

D. Defendant was not substantially prejudiced by joinder of
   the charges.
          Having described the appropriate framework in
reviewing a claim of substantial prejudice under ORS
132.560(3), we now apply that framework. As explained
above, defendant contends that the trial court erred in
failing to recognize that the evidence the prosecutor ini-
tially described—predicted testimony that M came forward
because she had “heard” that defendant had “done similar
things to other women”—was “substantially prejudicial.”
Defendant’s argument, however, relies on a view of the
record that is in dispute. The state contends that the trial
court could have understood that the state was not planning
to offer the concerning testimony and further notes that, in
fact, neither victim testified at trial that she had heard of
defendant committing bad acts against other women.14 As
explained below, we agree with the state that the trial court
could have understood that the predicted evidence would
not include the testimony that defendant had identified as
substantially prejudicial.
         As described above, after defendant argued that he
would be substantially prejudiced by testimony about simi-
lar uncharged bad acts, the prosecutor told the court that he
“want[ed] to clarify just a couple of things with regard to the
facts.” He then consulted police reports and described the
victim’s reported explanations for coming forward as more
generalized “concerns that the defendant, you know, may do
this again in the future.” He described M as explaining that,
“if [she] can stop another woman” from being harmed by
defendant, “then [she] wanted to do it.” He also explained
that M had told law enforcement that she wanted to report
defendant’s assault because she had heard that defendant
was dating her friend and was concerned that defendant
    14
       The Court of Appeals reasoned that its review was limited “to the state
of the record at the time of the court’s ruling on the motion to sever.” Delaney,

 (internal quotation marks omitted). We have never expressly
addressed whether review of a motion to sever is limited to the record created
at the time of the motion, but neither party challenges that standard applied by
the Court of Appeals. And we decline to unilaterally take up the question in this
case, in part because the answer would not impact our conclusion that defendant
was not substantially prejudiced by joinder—the trial record as a whole confirms
that the state did not introduce the concerning testimony.
Cite as 

 (2022)                                  577

might harm that friend. But the prosecutor also described
both victims as explaining that “[o]ne of the main reasons
[for coming forward] is because of what he did to them.”
Defendant did not respond to the “clarification” or offer an
alternative theory of substantial prejudice.
        Defendant now insists, however, that the prosecutor
never expressly disavowed his earlier representation of M’s
predicted testimony. In defendant’s view, the record of antic-
ipated prejudice from a joint trial must be understood as
including testimony that M came forward because she had
“heard” that defendant had “done similar things to other
women.” And defendant’s argument that he demonstrated
substantial prejudice depends on that view of the record.
         But the prosecutor’s representations about the
expected evidence can be understood in multiple ways. The
question of whether the prosecutor was clarifying that he did
not expect M to offer the concerning testimony was a prelim-
inary question that the trial court needed to answer before
determining whether defendant would be substantially
prejudiced by the expected testimony. In other contexts,
we assume that the trial court resolved preliminary ques-
tions in the light most favorable to its legal ruling, and we
accept the trial court’s resolution of a preliminary question
if there is evidence to support it. See, e.g., State v. Turnidge
(S059155), 

, 

 (2016), cert den, 

 (2017) (explaining that, in the motion to suppress
context, this court is “bound” to view the record “in the light
most favorable to the trial court’s ruling” with respect to
preliminary questions about the historical circumstances);
State v. Cunningham, 

, 

 (2004)
(explaining that this court accepts “reasonable inferences
and reasonable credibility choices that the trial court could
have made” when reviewing the trial court’s resolution of
preliminary factual questions in the admissible-evidence
context). We are unwilling to apply a different standard of
review to the dispositive preliminary question here.
         In sum, the trial court did not err in rejecting defen-
dant’s theory of substantial prejudice because the record
permitted the court to infer that the state would not in fact
offer the identified prejudicial evidence. Because defendant
578                                                        State v. Delaney

was not substantially prejudiced by joinder, the trial court
did not abuse its discretion when it denied defendant’s
motion to sever. Accordingly, we affirm.15
        The decision of the Court of Appeals and the judg-
ment of the circuit court are affirmed.




    15
       Defendant asks this court to adopt factors to guide the trial court in exer-
cising its discretion under ORS 132.560(3). Because we conclude that defendant
was not substantially prejudiced by joinder of the charges, we decline to do so.