449

This is a nonprecedential memorandum opinion pursuant to ORAP 10.30 and may not be cited except as provided in ORAP 10.30(1). Submitted June 24, affirmed October 19, 2022, petition for review allowed in part March 9, 2023 (

) See later issue Oregon Reports

STATE OF OREGON, Plaintiff-Respondent, v. DEMETRIO MEDINA SOTO, aka Demetrio Soto, Defendant-Appellant. Marion County Circuit Court 18CR75404, 18CR47005; A174899 (Control), A174900

Thomas M. Hart, Judge. Ernest G. Lannet, Chief Defender, Criminal Appellate Section, and Rond Chananudech, Deputy Public Defender, Office of Public Defense Services, filed the briefs for appellant. Ellen F. Rosenblum, Attorney General, Benjamin Gutman, Solicitor General, and Michael A. Casper, Assistant Attorney General, filed the briefs for respondent. Before James, Presiding Judge, and Aoyagi, Judge, and Joyce, Judge. JOYCE, J. Affirmed. James, P. J., concurring. 450 State v. Soto

JOYCE, J. Defendant appeals from judgments of conviction in two cases that were consolidated for a bench trial. In the first, the trial court convicted defendant of first-degree crim- inal trespass and telephonic harassment. In the second, the trial court convicted defendant of first-degree kidnapping, first-degree sodomy, first-degree burglary, strangulation constituting domestic violence, fourth-degree assault consti- tuting domestic violence, and menacing. Defendant raises five assignments of error. For the reasons that follow, we affirm. MOTION FOR JUDGMENT OF ACQUITTAL In his first assignment of error, defendant contends that the trial court erred in denying his motion for judgment of acquittal (MJOA) on the first-degree kidnapping charge. On review of a denial of an MJOA, “we view the evidence in the light most favorable to the state to determine whether a rational trier of fact, making reasonable inferences, could have found the essential elements of the crime proved beyond a reasonable doubt.” State v. Lewis,

,

(2014) (quoting State v. Hall,

,

(1998)). We conclude that the trial court correctly denied defendant’s MJOA. In the light most favorable to the state, the relevant facts are as follows. In October 2018, defendant forced him- self inside the victim’s apartment, wrapped his arms around her, carried her into the primary bedroom, and threw her onto the bed. Defendant then took her cellphone out of her hand, searched the apartment for other people, closed her children’s bedroom door, shut the window in the primary bedroom, and turned up the volume of the music that was playing in the bedroom. Defendant dragged the victim into the bathroom by her hair, closed the door, and then proceeded to assault and sodomize her. Defendant punched the victim and told her to “be quiet” and “shut up” any time she made a noise. Defendant also told her to “sit back down” when she tried to stand up off the bathroom floor and “pushed [her] back into the [primary] bedroom” when she tried to escape. Nonprecedential Memo Op:

(2022) 451

The state subsequently charged defendant with first- degree kidnapping. As to that charge, the state was required to prove that (1) defendant took the victim from one place to another, (2) with intent to interfere substantially with the victim’s personal liberty, (3) without consent or legal author- ity, (4) with the purpose of causing her physical injury. ORS 163.225(1)(a); ORS 163.235(1)(c); State v. Walch,

,

(2009).

In his MJOA, defendant challenged two aspects of the state’s evidence. He first argued that the state failed to prove that the victim’s ending place—the bathroom—was qualitatively different from her starting place—the front door. Specifically, defendant claimed that the movement did not serve to increase the victim’s isolation because both locations were within the same apartment and the victim was already isolated within her own apartment. See State v. Sierra,

,

(2010), adh’d to as mod- ified on recons,

,

(2011) (a defendant moves a victim from one place to another “only when the defendant changes the position of the victim such that, as a matter of situation and context, the victim’s ending place is qualitatively different from the victim’s starting place”); see also State v. Washington,

,

(2014), rev den,

(2015) (an important con- sideration when determining whether two places are quali- tatively different is “whether the movement served to limit the victim’s freedom of movement and increase the victim’s isolation” (quoting Walch,

)). Defendant also argued that the state failed to adduce sufficient evidence that he intended to interfere substantially with the victim’s personal liberty. The trial court denied the motion, conclud- ing that the state had offered sufficient evidence as to both elements.

We agree with the trial court. We reject defendant’s argument that the victim’s ending place was not qualita- tively different than her starting place for the same reasons that we previously articulated in Washington.

(a reasonable factfinder could find that the defen- dant increased the victim’s isolation by moving her from the front door of her apartment, an area where neighbors 452 State v. Soto

might have seen her, to a more isolated place within her apartment before raping her). Here, as in Washington, a rea- sonable factfinder could find that defendant increased the victim’s isolation by moving her from the front door of her apartment, an area where her children might have seen her, to the bathroom, a more isolated part of the apartment that could only be accessed through the primary bedroom, before assaulting and sodomizing her. We also conclude that the record contained suffi- cient evidence that showed that defendant intended to inter- fere substantially with the victim’s personal liberty. As to that element, “our review narrows to whether a rational jury could find that [the defendant] intended to interfere substan- tially with [the victim]’s personal liberty, including her ‘free- dom of movement’, such that the abduction was not merely incidental to other related, but independent, crimes.” State v. Worth,

,

(2015), rev den,

(2016) (internal citations, quotations marks, and brackets omitted). Here, the state offered evidence that defendant physically restrained the victim by wrapping his arms around her when he moved her from the front door to the bedroom. He then confined the victim to the bathroom with the door closed,1 thwarting any escape attempts by punching her and telling her to “shut up” any time she made noise. He also told the victim to “sit back down” when she tried to stand up and he pushed her back into the bedroom when she tried to escape. Based on that evidence, a rational trier of fact could find that defendant intended to interfere substantially with the victim’s personal liberty such that the abduction was not merely incidental to, or that it facili- tate[d] and further[ed] the commission of, defendant’s other crimes. CONSECUTIVE SENTENCES In his second assignment of error, defendant con- tends that the trial court erred in ordering that a portion of the sentences on the first-degree kidnapping and first- degree sodomy convictions run consecutively to one another 1 Even where, as here, the state asserts an asportation theory, the trier of fact may nonetheless consider evidence of confinement because it is “probative of [the] defendant’s state of mind.” State v. Mejia,

,

(2010). Nonprecedential Memo Op:

(2022) 453

under ORS 137.123(5)(a) and (b).2 The trial court imposed partial consecutive sentences after finding that “the decision to commit the sodomy, while you were exercising power and control in the form of domestic violence with regard to the kidnap and the burglary, justifies a consecutive sentence[.]” We review a trial court’s imposition of consecutive sentences for errors of law and determine whether the trial court’s predicate factual findings are supported by “any evidence” in the record. State v. Traylor,

,

(2014). With that standard of review in mind, we have reviewed the record and conclude that the trial court’s imposition of consecutive sentences under sub- section (5)(a) was proper.3 MOTION TO SEVER In his third and fourth assignments of error, defen- dant contends that the trial court erred in denying his motion to sever. In addition to the October incident, in July 2018,4 defendant entered the victim’s apartment unannounced and without permission (in fact, the victim had told defendant earlier that day that he could not come over). The victim and her friend repeatedly asked defendant to leave the apart- ment, but he refused to do so until the friend called 9-1-1. When law enforcement arrived, the victim reported that 2 Under ORS 137.123(5), the trial court may impose consecutive terms of imprisonment for separate convictions “arising out of a continuous and uninter- rupted course of conduct” only if it finds one of the following: “(a) That the criminal offense for which a consecutive sentence is con- templated was not merely an incidental violation of a separate statutory pro- vision in the course of the commission of a more serious crime but rather was an indication of defendant’s willingness to commit more than one criminal offense; or “(b) The criminal offense for which a consecutive sentence is contem- plated caused or created a risk of causing greater or qualitatively different loss, injury or harm to the victim or caused or created a risk of causing loss, injury or harm to a different victim than was caused or threatened by the other offense or offenses committed during a continuous and uninterrupted course of conduct.” 3 Because the consecutive sentences were legally permissible under subsec- tion (5)(a), we do not address defendant’s argument that consecutive sentences were not legally permissible under subsection (5)(b). 4 We summarize the July 2018 incident based on the evidence that was in the record at the time that the trial court ruled on defendant’s motion to sever. State v. Buyes,

,

(2016) (“We limit our review to the state of the record at the time of the court’s ruling on the motion to sever.”). 454 State v. Soto

defendant had been calling and messaging her excessively, despite her requests that he stop. On that day alone, defen- dant had called and messaged her at least 20 times, and he called her while the officers were taking her statement. The state subsequently charged defendant with first-degree criminal trespass and telephonic harassment. On the state’s motion, the trial court joined the July and October offenses. Defendant later challenged the join- der and moved to sever, arguing that, even if the cases were properly joined, he was substantially prejudiced by their joinder.5 Both of those issues are legal determinations that we review for errors of law. State v. Dewhitt,

,

, rev den,

(2016) (whether the charging instruments were properly joined); State v. Miller,

,

(1998) (whether joinder of the offenses was likely to cause prejudice). We start by considering whether the charges were properly joined under ORS 132.560. ORS 132.560(2) pro- vides that a trial court may consolidate two or more charging instruments if they meet the circumstances described in ORS 132.560(1)(b), which are as follows: “* * * the offenses charged are alleged to have been commit- ted 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.” Joinder is appropriate under ORS 132.560(1)(b)(C) if “the joined counts or charges are logically related, and there is a large area of overlapping proof between them.” Dewhitt,

(quoting State v. Johnson,

,

, rev den,

(2005) (brackets omitted)). One instance where charges are “logi- cally related” is where the “later charges stem from, or are 5 On appeal, defendant also argues that joinder resulted in a fundamentally unfair trial in violation of his right to due process of law under the federal consti- tution. We decline to consider that argument because defendant did not preserve it below nor does he request plain error review on appeal. Nonprecedential Memo Op:

(2022) 455

otherwise precipitated by, an earlier charge.”

at 384-85 (citing State v. Wittwer,

,

(2007)). In its opposition to defendant’s motion to sever, the state offered defendant’s statements that, while awaiting trial on the charges arising from the July incident, he com- mitted the October offenses as “punishment for [the victim’s] earlier [police] report” and to make his anticipated prison sentence “worth [his while.]” As the state notes, defendant’s own statements show that the October offenses were pre- cipitated by the victim reporting the July offenses to law enforcement. Accordingly, the circumstances described in ORS 132.560(1)(b)(C) were met and the trial court properly joined the July and October offenses under ORS 132.560(2). Defendant next argues that, even if joinder was proper, the trial court still erred in denying his motion to sever because he was substantially prejudiced by the join- der.6 We have long recognized that the possibility of preju- dice exists, “at least in the abstract, in virtually every situ- ation in which charges are joined for trial.” Dewhitt,

. Accordingly, the moving party “must identify a ‘case-specific’ circumstance that impairs [their] right to a fair trial in such a way that a danger of substantial prejudice cannot be mitigated in other ways.”

at 387 (quoting State v. Luers,

,

, adh’d to as mod- ified on recons,

,

(2007)); see also State v. Crummett,

,

(2015) (“The party seeking severance of properly joined charges bears the burden of demonstrating that joinder will result in substantial prejudice.” (Internal citations omitted.)). In attempting to meet his burden, defendant iden- tifies several case-specific circumstances that he believes prejudiced him: the evidence in each case would not be cross-admissible in the other case; a single trial prevented him from invoking his Fifth Amendment right for only the July offenses; and a single trial prevented him from pro- ceeding to a jury trial (rather than a bench trial) on only the October offenses. 6 ORS 132.560(3) provides that, “[i]f it appears, upon motion, that the state or defendant is substantially prejudiced by a joinder of offenses * * *, the court may order an election or separate trials of counts or provide whatever other relief justice requires.” 456 State v. Soto

We are not persuaded by defendant’s first argument that he was substantially prejudiced by the joinder because the evidence in each case would not be cross-admissible in the other case. Even if the trial court erred in conclud- ing that the evidence would have been mutually admissi- ble in separate trials, our case law establishes that, when evidence pertaining to the various charges “is sufficiently simple and distinct to mitigate the dangers created by join- der, substantial prejudice has not been established.” State v. Dimmick,

,

(2012) (citing Luers,

); see also State v. Tidwell,

,

(2013), rev den,

(2014) (“even if we assume that the evidence in each case was not mutually admissible in the other[,]” the evidence was “suffi- ciently simple and distinct to mitigate the dangers created by joinder”). When a party invokes the simple-and-distinct theory, as the state does here, we look to several factors, including: “whether the charges related to each victim were separated in time and place, whether the incidents at issue were discrete events, whether the evidence in each case was uncomplicated and supported by separate witnesses, and whether the prejudice identified could be mitigated by jury instructions and by limiting the scope of the state’s cross- examinations.” State v. Delaney,

,

, rev allowed,

(2021) (internal citations and quotation marks omitted)). Here, although the offenses took place in the same apartment, they arose from two discrete incidents, they occurred on two different days, and the evidence was uncom- plicated and supported by separate witnesses.7 Moreover, given the nature of a bench trial, the prejudice identified by defendant could have been effectively mitigated by the trial court’s self-instructions8 and by limiting the scope of the state’s cross examinations.9 See Tidwell,

7 Of the 12 witnesses that the state called, only three—the victim, defen- dant’s sister, and an officer—testified about both offenses. 8 A trial court’s self-instructions in a bench trial are comparable to jury instructions. State v. Colby,

, 250 n 1,

(2018). 9 As further proof of substantial prejudice, defendant points to the fact that evidence in each case was in fact used as propensity evidence in the other case at trial. But, as noted above, our review is limited to the state of the record at the time of the trial court’s ruling on the motion to sever; we cannot consider whether Nonprecedential Memo Op:

(2022) 457

(probable effectiveness of limiting instructions is relevant to whether defendant has established substantial prejudice). We are also unpersuaded by defendant’s second and third substantial prejudice arguments—that joinder pre- vented him from invoking his Fifth Amendment right as to the July offenses and prevented him from proceeding to a jury trial on the October offenses. As the state observes, the difficulty with those arguments is that neither assertion is factually accurate. The trial court initially ordered that the July offenses be tried separately from the October offenses specifically so that defendant could waive jury on the July offenses. The trial court also ordered, on defendant’s request, that the July offenses be tried the day before the October offenses so that defendant could invoke his Fifth Amendment right on the July offenses only. Then, the day before the scheduled bench trial on the July offenses, defendant filed a waiver of jury trial on both the July offenses and the October offenses. When ques- tioned about the decision, defendant assured the trial court that he understood the situation and wanted to proceed with a single bench trial on all charges: “THE COURT: All right. And you’ve been in court on other occasions. You seem pretty level-headed. And you understand the situation that you’re in and you’ve talked to your lawyer about this, right?

“THE DEFENDANT: Absolutely.

“THE COURT: Okay. A jury typically would determine the facts. I’d give them the law, and then that’s how they would reach a verdict. By waiving your right to a trial by a jury, I would do both the facts and the law. Do you under- stand that?

“THE DEFENDANT: Yes, I do, Your Honor.

evidence was in fact admitted at trial or the purposes for which such evidence was offered at trial. State v. Turner,

,

, rev den,

(1998) (When reviewing a trial court’s ruling on a motion to sever, we “examine the decision in light of the arguments asserted and circumstances per- taining at the time the pretrial motion was made. * * * Errors that occur during trial may provide grounds for a mistrial motion or for other relief, but they cannot provide the basis for a motion to sever.”). 458 State v. Soto

“THE COURT: And is that the way you wish to proceed at trial? “THE DEFENDANT: Definitely. “* * * * * “THE COURT: Okay. Then I’m going to find that you are freely, knowingly, and voluntarily waiving your right to have this case presented to a jury. And what we’ll do is go to trial and I’ll—I’ll be both the fact-finder and apply the law and reach a verdict that way, okay? “THE DEFENDANT: Yes, Your Honor. Thank you.” After noting that defendant’s jury waiver would shorten the length of the trial by one day, the trial court asked defen- dant and defense counsel separately whether there were any other matters that they wanted to discuss. They both responded that there was nothing further at that time. Under the circumstances, it cannot be said that the trial court deprived defendant of his Fifth Amendment and jury trial rights; to the contrary, the trial court ruled that defendant could have the two cases tried separately specif- ically so that defendant could utilize those rights and avoid the very prejudice that he now claims on appeal. We thus conclude that defendant has failed to demonstrate substan- tial prejudice from joinder of the cases. CULPABLE MENTAL STATE Finally, in a supplemental assignment of error, defendant contends that, in light of the Supreme Court’s recent decision in State v. Owen,

,

(2022),10 the trial court erred in failing to find that he “acted with at least criminal negligence as to the physical injury that [the victim] suffered” before finding him guilty of fourth-degree assault. Having reviewed the evidence and the trial court’s speaking verdict, we conclude that if any error existed, it was harmless. Affirmed. 10 In Owen, the Supreme Court held that, under ORS 161.095(2), a culpable mental state applies to the resultant injury element of second-degree assault.

. Accordingly, the state was required to prove, at a minimum, “that [the] defendant was criminally negligent with respect to the injury caused by the defendant’s actions.”

Nonprecedential Memo Op:

(2022) 459

JAMES, P. J., concurring. I join in the majority fully, except as to its analysis of joinder and severance. On that issue, I write separately. First, I am uncertain of the weight to give State v. Miller,

,

(1998), cited by the majority, in light of subsequent Oregon Supreme Court decisions such as State v. Warren,

,

(2018), dis- cussing how a defendant’s right to a fair trial on a charged offense can be jeopardized when evidence of other offenses is improperly before the jury as a result of joinder. Second, I acknowledge that we have upheld joinder, despite concerns of cross-admissibility of evidence, when it is determined that such evidence is “sufficiently simple and distinct to mitigate the dangers created by joinder.” See, e.g., State v. McMinn,

,

(1996); State v. Luers,

,

, adh’d to as modified on recons,

,

(2007); State v. Dimmick,

,

(2012). I note, however that our case law on this point has its origins in federal law. See, e.g., State v. Meyer,

,

(1991), rev den,

(1992). Of importance, however, is that under federal law joinder on a “simple and distinct” rationale is not stand-alone, it requires concomitant limiting instructions to the jury. Here, defendant’s motion before the trial court alerted the court that, in assessing prejudice, “the court’s inquiry must focus on the effectiveness of limiting instruc- tions.” The state agreed, and in its response to the motion to sever noted, “[a]s an additional precaution, a jury instruc- tion could be given to the jury to ensure charges are consid- ered separately.” Although the state invoked a “sufficiently simple and distinct” rationale for joinder, the court’s ruling did not specifically rely on that theory, which may explain why no jury instructions were discussed. I am hesitant to rely on a “sufficiently simple and distinct” rationale, given that this record does not include what jury instructions the trial court believed, at the time it made its ruling, would be sufficient to remedy any prejudice. And after the ruling defendant waived jury, so the record is now silent on that component. 460 State v. Soto

Given the nonprecedential nature of our disposi- tion, I need not expound on these issues further. Ultimately, I concur in the judgment here because I perceive the resolu- tion to be controlled by our decision in State v. Delaney,

,

, rev allowed,

(2021). However, the Oregon Supreme Court has accepted review in that case, and its resolution of the issues present there, which include virtually all of the concerns I express here, will likely affect this case as well.