STATE OF OREGON v. NATHANIEL CURTIS FREEMAN (2026)

Defendant appeals a judgment of conviction for three counts of unlawful use of a weapon with a firearm (UUW-firearm), ORS 166.220 (Counts 1, 5, and 9), three counts of felon in possession of a firearm (FIP-firearm), ORS 166.270(1) (Counts 2, 6, and 10), and two counts of first-degree murder with a firearm (first-degree murder-firearm), ORS 163.107 (Counts 3 and 7), based on his conduct in three separate incidents that occurred in May 2021, April 2022, and May 2022.¹ In his first four assignments of error, defendant argues that the trial court erred in denying his motion to sever the charges related to each of those incidents from the other charges because they were not properly joined and because he was substantially prejudiced by their joinder. In his fifth through seventh assignments of error, defendant contends that the trial court erred in denying his motion to exclude evidence related to the toolmark and firearm identification methodology developed by the Association of Firearm and Tool Mark Examiners (AFTE).

We conclude that, under State v. Adams, 340 Or App 661, 690-701, 572 P3d 291, rev allowed, 374 Or 419 (2025), the trial court erred in denying defendant's motion to exclude AFTE toolmark evidence. However, we further conclude that the error was harmless, given that the state did not rely on the toolmark evidence to prove the charges arising out of the May 2021 incident and given defendant's testimony at trial in which he admitted to shooting the two victims in the April 2022 and May 2022 incidents. See State v. Ramirez, 342 Or App 668, 675, 577 P3d 826, rev den, 374 Or 616 (2025) (concluding that there was “little likelihood” that the trial court's erroneous admission of AFTE toolmark evidence “affected the verdict” where that evidence “had some probative value in helping to establish that it was more likely that the person who shot one of the victims was also the person who shot the other victim” but “played no significant role in establishing who that person was”). We therefore reject defendant's fifth through seventh assignments of error without further discussion.

We write to address defendant's first through fourth assignments regarding the trial court's denial of defendant's motion to sever the charges arising from the three separate incidents on the grounds that they were not properly joined and that he was substantially prejudiced by their joinder. As we explain more fully below, a charging instrument may generally charge only one offense unless a statutory exception applies, including that, as relevant here, the charged offenses were committed by the same person and are of the same or similar character. ORS 132.560(1). However, even if the charges can be properly joined, the trial court “may order an election or separate trials of counts or provide whatever other relief justice requires” if the defendant demonstrates that he is substantially prejudiced by joinder of the charges. ORS 132.560(3).

We conclude that the trial court erred in denying defendant's motion to sever the charges arising from the May 2021 incident from the charges arising from the April 2022 and May 2022 incidents, because the state did not demonstrate that the May 2021 charges were “of the same or similar character” as the April 2022 and May 2022 charges and that error was not harmless. However, we conclude that the April 2022 and May 2022 charges were the same or similar such that their joinder was proper and that defendant did not demonstrate that he was substantially prejudiced as a result of their joinder. Accordingly, we reverse and remand defendant's convictions on Counts 1 and 2 and otherwise affirm.

I. STANDARD OF REVIEW

“We review a trial court's determination that the state met the statutory requirements for joinder of charges for legal error. We also review a trial court's determination whether the facts stated in a defendant's motion to sever [ ] show the existence of prejudice for legal error.” State v. Brown, 326 Or App 46, 50, 531 P3d 178, rev den, 371 Or 332 (2023) (internal quotation marks omitted). In determining whether the court erred in either of those respects, “[w]e limit our review to the state of the record at the time of the court's ruling on the motion to sever.”² Id. at 50-51 (internal quotation marks omitted). However, when considering whether any such error was harmless, we consider the entire record. See State v. Sells, 339 Or App 299, 302, 568 P3d 1011 (2025) (“When considering whether an evidentiary error was harmless, the court must consider the entire record.” (Internal quotation marks omitted.)); State v. Meighan, 324 Or App 136, 142, 525 P3d 78, rev den, 371 Or 175 (2023) (in determining whether a jury instruction error was harmless, “we consider the record as a whole”).

II. BACKGROUND

As noted, the state charged defendant with multiple offenses arising out of three separate incidents. The first of those occurred at a park on May 23, 2021, when, during a baby shower for his former partner, J, defendant got into a physical altercation with guests at the shower, retrieved a pistol from his vehicle, and returned to confront the people with whom he had been fighting (“the May 2021 baby shower incident”). J convinced defendant to return the firearm to his car. Officers who responded to the scene observed a pistol out of the holster in plain view inside defendant's vehicle. J reported to police that she had purchased at least 13 firearms, as well as ammunition for them, for defendant, at his request and direction.

The second incident occurred almost a year later, on April 24, 2022. On that date, both defendant and an individual, G, attended a birthday party at a private venue in southeast Portland (“the April 2022 shooting of G”). At some point, a physical confrontation arose between two groups of people, defendant and G called each other names, and defendant pulled out an “FN 57 handgun” and shot G four or five times. Some of G's friends took him to the hospital, where he was pronounced dead. Police identified defendant based on his appearance, clothing, vehicle, and license plate, using eyewitness accounts and video from security cameras in the area.

The third incident occurred 10 days later, on May 4, 2022. On that date, defendant met an individual, V, through a mutual friend, B, and attempted to sell V a small amount of cocaine (“the May 2022 shooting of V”). A dispute arose, and defendant and V engaged in a physical altercation, during which B fired a gun into the air. Someone called 9-1-1, but police did not find anyone or evidence of gunfire at the scene when they arrived. A short time later, defendant went to V's apartment with an AR-15 rifle, knocked on the door, and ultimately shot V multiple times. V's fiancée called 9-1-1, and, when authorities arrived, V was pronounced dead at the scene. Police identified defendant based on his appearance, clothing, vehicle, and license plate using eyewitness accounts and video from security cameras in the area.

A few weeks later, a grand jury issued a single indictment charging defendant with UUW-firearm (Count 1) and FIP-firearm (Count 2) based on the May 2021 baby shower incident; first-degree murder-firearm (Count 3), second-degree murder with a firearm (Count 4), UUW-firearm (Count 5), and FIP-firearm (Count 6) based on the April 2022 shooting of G; and first-degree murder-firearm (Count 7), second-degree murder with a firearm (Count 8), UUW-firearm (Count 9), and FIP-firearm (Count 10) based on the May 2022 shooting of V.³

In September 2022, defendant filed a motion to sever the charges related to each incident from the charges concerning the other incidents. Defendant argued that the charges were not properly joined because the offenses were not of the same or similar character, noting in particular that “a different weapon was used in each incident” and that the May 2021 baby shower incident did “not even involve a shooting or any allegation that a gun was even fired.” Defendant further argued that, even if the offenses were the same or similar, they should nonetheless be severed because their joinder substantially prejudiced defendant. More specifically, defendant argued that “none of the evidence is cross-admissible” and that the charges were “neither simple nor distinct,” particularly in light of the state's intent to offer DNA and ballistics or toolmark evidence.

With respect to defendant's improper joinder arguments, the state relied solely on the “same or similar character” basis for joining all of the offenses. The state argued that the legislature intended that courts take a “broad approach to the joinder of charges in criminal cases” and that, because “the * * * three episodes each allege a count of Unlawful Use of a Weapon with a Firearm and Felon in Possession of a Firearm with a Firearm,” they were “so obviously facially similar per [State v. Meyer, 109 Or App 598, 820 P2d 861 (1991), rev den, 312 Or 677 (1992)] as to not warrant further discussion.” The state further argued that defendant had failed to establish that he was substantially prejudiced by joinder of the charges.

At the hearing on the motion to sever, the parties and court did not further discuss whether the charges had been properly joined in the indictment.⁴ Instead, they focused on whether defendant had established that he was substantially prejudiced by the joinder of the charges, in particular, the joinder of the murder charges arising from the April 2022 shooting of G with the murder charges arising from the May 2022 shooting of V, in light of State v. Delaney, 370 Or 554, 522 P3d 855 (2022), which had issued a few weeks before the hearing.

Defendant's theory of prejudice articulated at the hearing was that “[p]ropensity evidence itself can rise to the level of substantial prejudice” and that the “difference in degree” of prejudice from joinder of the murder charges rose to the required level for severance. When the court asked defendant how he distinguished this case from Delaney, defendant noted that “the two homicides occurred within two weeks of each other,” which defendant argued was “significantly different than the years apart that the two sexual assaults were in Delaney.” Defendant also argued that, “to the extent that some evidence is cross-admissible, * * * the State could certainly present evidence of the vehicle for purposes of establishing identity without revealing the fact that there is a second homicide.” In other words, defendant argued, “[i]f the cases were severed, the State would not be hampered in presenting their evidence to prove each case individually” and “it wouldn't be necessary for them to reveal the existence of another homicide case.”

At the hearing, defendant also renewed his argument that the toolmark evidence would be “confusing” for the jury. The court noted that it understood from the hearing on defendant's motion to exclude toolmark evidence that the April 2022 shooting of G involved a different type of gun than that used in the May 2022 shooting of V and that the court “would certainly instruct the jury that [the toolmark] evidence * * * is only relevant to the allegations relating to the date of the first homicide.”

Finally, defendant argued that joinder of the charges arising from the April 2022 shooting of G with the charges arising from the May 2022 shooting of V “severely hamper [defendant's] ability to raise a self-defense claim in one homicide or the other.” However, defendant did not assert that he sought to raise a self-defense claim as to either shooting, and the court noted that it had not “heard or seen anything in this record to suggest that there's going to be a basis for a self-defense argument” concerning either incident, beyond defendant “speculating that that's possible.”

The trial court noted that any prejudice to defendant could potentially be addressed with “really clear limiting instructions to a jury” and ultimately denied defendant's motion to sever. A few months later, the court held trial on the joined charges, and defendant waived his right to have the FIP-firearm charges decided by a jury. After the presentation of evidence, the trial court instructed the jury, in part:

“You are to consider each of the incidents separately in your deliberations, without considering evidence that was related solely to the other incidents. You may not use evidence of one incident for the purpose of drawing the inference that because the Defendant may be guilty of the crime arising from that incident that the Defendant may be guilty of the crime charged in the separate incidents.”

Ultimately, defendant was found guilty on all of the charges.

On appeal, defendant renews his arguments that the charges concerning the three incidents were not properly joined and that, even if they were, he was substantially prejudiced by their joinder. We address those arguments in turn.

III. ANALYSIS

A. Background on Joinder and Severance of Criminal Charges

ORS 132.560 governs the joinder and severance of criminal offenses and reflects a balancing of competing interests. Brown, 326 Or App at 50. “On one hand, an accused's right to a fair trial means the exclusion of unfairly prejudicial evidence of other crimes.” Id. (citing State v. Warren, 364 Or 105, 114-15, 430 P3d 1036 (2018) (“Just as the admission of evidence of other crimes can be unfairly prejudicial when a defendant is charged with a single crime, the joinder of charges for multiple crimes can be unfairly prejudicial.”)). “On the other hand, ‘[t]he purpose of the joinder statute is to reduce the occurrence of multiple trials for multiple related crimes committed by a single defendant.’ ” Id. (quoting State v. Smith, 308 Or App 639, 644, 481 P3d 363 (2021)).

Thus, ORS 132.560(1) sets out the general rule that, “under Oregon law, a charging instrument may charge only one offense,” unless a statutory exception applies. Warren, 364 Or at 114. ORS 132.560(1) also sets out the statutory exceptions to the general rule and, in subsection (b), allows the state to join charges

“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.”

ORS 132.560(1)(b); see also State v. Poston, 277 Or App 137, 143, 370 P3d 904 (2016), adh'd to on recons, 285 Or App 750, 399 P3d 488, rev den, 361 Or 886 (2017) (“The legislature amended ORS 132.560 in 1989 to allow more liberal joinder of charges in criminal cases,” specifically to “mimic Federal Rule of Criminal Procedure 8(a).”).

“Upon a motion challenging joinder, the state bears the burden, under ORS 132.560(1)(b), to establish that one of three statutory exceptions permitting joinder applied to its charging decision.” State v. Hernandez-Esteban, 374 Or 300, 313, 577 P3d 761 (2025). To meet that burden, the state must allege the basis for joining the offenses and that basis must be possible, given the offenses and facts alleged. State v. Taylor, 364 Or 364, 373, 434 P3d 331 (2019). “If the state cannot meet its burden to show that one of [the statutory] exceptions applies, then severance is required, as the counts never were properly joined.” Hernandez-Esteban, 374 Or at 314.

However, if the state has met that burden and the defendant also challenges joinder on the basis that he is substantially prejudiced by joinder of the charges, the defendant bears the “burden to establish substantial prejudice—that is, ‘the kind of potential injury or harm that threatens the defendant's interest in a fair trial.’ ” Id. (quoting Delaney, 370 Or at 566). To do so, “the defendant must articulate a case-specific theory of prejudice” and that “theory must demonstrate a degree of prejudice beyond the prejudice that is inherent to the joinder of unrelated charges.” Delaney, 370 Or at 566. If the defendant meets his burden to establish substantial prejudice, the court must then exercise its discretion to craft a remedy “sufficient to reduce [the prejudice] to the level of prejudice inherent in the joinder of criminal charges.” Hernandez-Esteban, 374 Or at 302.

B. The Propriety of Joinder of the Charges

As noted, defendant moved to sever the charges arising from each of the three incidents from each other, arguing that they had not been properly joined because the offenses were not “of the same or similar character” and, even if they were, their joinder substantially prejudiced defendant. We begin with defendant's arguments that the three sets of charges were not properly joined.⁵ In evaluating whether offenses are “of the same or similar character,” we “conduct a comprehensive review, considering factors such as the temporal proximity of the acts, similarities in the elements of the offenses, whether there will be similar evidence or evidentiary overlap, and whether the charges involve the same or similar victims, locations, intent, modus operandi, or acts.’ ” Brown, 326 Or App at 52 (internal quotation marks omitted); see id. at 52-53 (concluding that multiple charges arising from two separate incidents were not the same or similar because the charged offenses involved few common or similar elements, and because the incidents were alleged to have been committed several months apart, were not alleged to have been committed in the same or similar locations, apart from occurring in the same county, and involved no evidentiary overlap); State v. Garrett, 300 Or App 671, 682-84, 455 P3d 979 (2019), rev den, 366 Or 827 (2020) (concluding that sodomy and sexual abuse of a child were not similar to encouraging child sexual abuse because the elements of each crime were different, they were alleged to have been committed several months apart, the victims and modes of operation were different, and there was no evidentiary overlap).

As noted, the indictment alleged that defendant committed UUW-firearm and FIP-firearm in the May 2021 baby shower incident, the April 2022 shooting of G, and the May 2022 shooting of V. The indictment further alleged that defendant also committed first-degree murder-firearm and second-degree murder-firearm in the April 2022 shooting of G and the May 2022 shooting of V.

We conclude that the record before the trial court at the time it ruled on defendant's motion to sever demonstrated that it was possible that the charges arising out of the April 2022 shooting of G and those arising out of the May 2022 shooting of V were of the same or similar nature such that their joinder was proper. First, the same four offenses were charged based on defendant's alleged conduct on both of those dates, such that the state was required to prove the same elements in relation to both incidents. Moreover, those incidents occurred close in time to each other—only 10 days apart. Further, there was some overlap of evidence that would be presented with respect to the two shootings, namely testimony from defendant's former partner J regarding her purchase of firearms for defendant and evidence linking defendant to his vehicle and ultimately to both of the crime scenes.

However, we conclude that the state failed to demonstrate that the UUW-firearm and FIP-firearm charges arising from the May 2021 baby shower incident were the same as or similar to the charges arising from the April 2022 shooting of G and May 2022 shooting of V, particularly the murder charges arising from the latter two incidents. See Brown, 326 Or App at 56 (rejecting the state's argument that it could make a “ ‘daisy chain’ of offenses—if offense A is joinable with offense B, and offense B is joinable with offense C, then all three offenses may be joined, even if joinder of only offenses A and C would not be proper”).

We acknowledge that there were some similarities between the offenses arising from the May 2021 baby shower incident and the offenses arising from the April 2022 shooting of G and May 2022 shooting of V. With respect to the elements of the offenses, UUW-firearm, FIP-firearm, first-degree murder-firearm, and second-degree murder-firearm all required proof that defendant possessed or used a firearm. The FIP-firearm and first-degree murder-firearm charges also share an arguably similar element—prior conviction of a felony (although, as we discuss further below, the pertinent element in a first-degree murder-firearm charge is a particular type of prior felony conviction, one for specified homicides).⁶ Looking at potential evidentiary overlap, the state sought to satisfy the prior felony conviction elements for the FIP-firearm charge arising from the May 2021 baby shower incident and the first-degree murder-firearm charges arising from the April 2022 shooting of G and the May 2022 shooting of V with proof that defendant had previously been convicted of voluntary manslaughter. It was also possible that the state would offer J's testimony as an eyewitness who observed the May 2021 baby shower incident, or that it would offer her testimony regarding guns and ammunition she had purchased for defendant at his direction, in support of the charges arising from all three incidents. As for the location of the offenses, all were alleged generally to have occurred in the same county. But see Garrett, 300 Or App at 688 (concluding that “the similar, but general, location of the alleged acts, Lane County, does not assist us a great deal in our analysis”). Finally, defendant's acts in each of the three incidents bore some similarity to each other in that, in each incident, defendant was alleged to have possessed and used a firearm in response to disputes he had with others.⁷

We conclude, however, that given other significant differences between the charges arising from the May 2021 baby shower incident (UUW-firearm and FIP-firearm) and the charges arising from the April 2022 shooting of G (UUW-firearm, FIP-firearm, first-degree murder-firearm, and second-degree murder-firearm) and the May 2022 shooting of V (UUW-firearm, FIP-firearm, first-degree murder-firearm, and second-degree murder-firearm), the record at the time of defendant's motion did not support joinder of those charges. Although an element of both FIP-firearm and first-degree murder-firearm is the defendant's prior conviction of a felony, for first-degree murder-firearm that element is not just any prior felony conviction but a conviction for a specified type of homicide.⁸ Compare ORS 163.107(1)(c) (defining first-degree murder to include circumstances in which the defendant has been previously convicted “in any jurisdiction of any homicide,” the elements of which constitute aggravated murder, first- or second-degree murder, or first-degree manslaughter), with ORS 166.270(1) (defining FIP-firearm as “[a]ny person who has been convicted of a felony” who owns, possesses, or has custody or control of a firearm). In addition, the UUW-firearm and FIP-firearm charges, the only charges arising from the May 2021 baby shower incident, did not require proof that defendant ever fired a firearm, while the first-degree murder-firearm charges that arose from the April 2022 shooting of G and May 2022 shooting of V required proof that defendant not only fired a firearm but did so to intentionally cause the death of another human being. Moreover, the May 2021 baby shower incident occurred almost a full year before the latter two incidents and did not involve the same or similar victims, locations, or firearms. Because the charges arising from the May 2021 baby shower incident were not “of the same or similar character” as those arising from the April 2022 shooting of G and May 2022 shooting of V, the trial court erred in denying defendant's motion to sever the May 2021 baby shower incident charges from the other charges.

Our analysis does not end there, however, because we must determine whether the misjoinder of the May 2021 baby shower incident charges (UUW-firearm and FIP-firearm) “affected defendant's substantial rights, and, therefore, was not harmless.” Garrett, 300 Or App at 690. That requires us to consider whether the erroneous joinder “led to the admission of evidence that would not have been admissible but for the erroneous joinder.” Id. at 691 (internal quotation marks and brackets omitted); see id. at 692 (“ ‘[E]vidence presented at a trial on erroneously joined charges would be ‘admissible’ * * * in a hypothetical trial on each charge or properly joined group of charges, only when (1) each item of evidence that was actually presented could have been admitted in the hypothetical trial under a legally correct evidentiary analysis and (2) it is implausible that, had the defendant objected under OEC 403 or raised some other objection invoking the trial court's discretion, the trial court would have excluded that evidence in the hypothetical trial.’ ” (Quoting State v. Clardy, 286 Or App 745, 772-73, 401 P3d 1188, adh'd to as modified on recons, 288 Or App 163, 406 P3d 219 (2017), rev den, 364 Or 680 (2019).). That is so whether the charges are tried to a jury or to the court. State v. Marks, 286 Or App 775, 784, 400 P3d 951 (2017). However, in a bench trial, “[t]he error could be harmless if the trial court did not consider the evidence related to the other charges when it found the defendant guilty.” Id. at 784-85. We also consider whether “the defendant would testify regarding some charges but not others, if the defendant's defenses to the charges could be viewed as inconsistent, if the evidence of one charge might improperly influence the jury's verdicts on other charges, or if the evidence could confuse the jury.” Garrett, 300 Or App at at 691 (internal quotation marks and brackets omitted).

Here, the state does not present any argument that any error was harmless, and we cannot conclude that the error had little likelihood of affecting the jury's or the trial court's verdicts on the UUW-firearm and FIP-firearm charges arising from the May 2021 baby shower incident, given that “some prejudicial evidence would not have been cross-admissible, and in these circumstances, may have affected the outcome.” Brown, 326 Or App at 58. In particular, we conclude that evidence that defendant used a firearm to kill two individuals in April and May 2022 would not have been relevant and therefore would not have been admissible in a trial solely on the UUW-firearm and FIP-firearm charges arising from the May 2021 baby shower incident, in which defendant was not even alleged to have fired a gun. See OEC 401 (“ ‘Relevant evidence’ means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.”).

Moreover, we conclude that the evidence supporting the murder charges had more than a little likelihood of improperly influencing the jury's and the trial court's verdicts on the May 2021 baby shower incident charges. See Warren, 364 Or at 115 (“[E]vidence of other crimes usually is very prejudicial to the defendant because such a fact is often interpreted by the jury as evidence of bad criminal character.”); Brown, 326 Or App at 57 n 4 (“The harmless error standard on appellate review—whether there is little likelihood that misjoinder affected the verdict—is less demanding than the substantial prejudice standard for a motion to sever in the trial court.”). That is particularly true given that, at trial, defendant admitted to possessing and firing firearms in the April 2022 shooting of G and May 2022 shooting of V but made no such admissions in relation to the May 2021 baby shower incident. See Hernandez-Esteban, 374 Or at 324 (concluding that “substantially stronger evidence” supporting “more serious counts against one of the two alleged victims * * * could * * * tempt the jury to ‘fill in the gaps’ with respect to the other victim, against whom the state alleged less severe conduct supported by thinner evidence”).

Although the trial court instructed the jury “to consider each of the incidents separately in your deliberations, without considering evidence that was related solely to the other incidents,” given defendant's own testimony as to his use of firearms in the April and May 2022 homicides, we cannot say that that evidence had no impact on the jury's guilty verdict for UUW-firearm in relation to the May 2021 baby shower incident. As for the trial court's guilty verdict on the FIP-firearm charge arising from the May 2021 baby shower incident, the record before us does not support a determination that the trial court conducted a separate analysis as to each of the three FIP-firearm charges. Marks, 286 Or App at 785 (concluding that the trial court's error in disallowing the defendant's demurrer on the basis of improper joinder was not harmless “[b]ecause it [was] not clear that the trial court conducted a separate analysis of the evidence”); cf. State v. Pack, 287 Or App 254, 259, 403 P3d 542 (2017) (concluding that the improper joinder of charges was harmless where the trial court stated on the record that “I will consider only the evidence that's presented to me for purposes of determining the Contempt”). Here, the state presented all of its evidence together in a joint trial, and the court did not make any findings or explain its ruling but, instead, merely announced its guilty verdict on that charge.

We similarly conclude that none of the evidence related to the May 2021 baby shower incident would have been relevant to the charges arising from the April 2022 shooting of G and May 2022 shooting of V and therefore would not have been admissible in a hypothetical trial on only those charges. See OEC 401 (defining “relevant evidence”). However, we conclude that the error in joining the May 2021 baby shower incident charges with the other two sets of charges had little likelihood of improperly affecting the jury's verdicts on the charges arising from the April 2022 shooting of G and May 2022 shooting of V, given the volume and strength of the evidence ultimately offered in support of those charges. That evidence included testimony from multiple eyewitnesses and security camera videos linking defendant to the shootings, as well as defendant's own testimony at trial in which he admitted shooting both G and V, claiming self-defense.

Because we conclude that the trial court erred in denying defendant's motion to sever the May 2021 baby shower incident charges from the other charges in the indictment and that that error had more than little likelihood of affecting the verdicts on the May 2021 baby shower incident charges, we reverse defendant's convictions on Count 1 (UUW-firearm) and Count 2 (FIP-firearm).

C. Substantial Prejudice Resulting from Joinder of the Charges

Having concluded that the trial court did not err in denying defendant's motion to sever the charges arising from each of the two shootings in April and May 2022 based on improper joinder, we turn then to defendant's arguments that he was substantially prejudiced by joinder of the charges from the April 2022 shooting of G (first-degree murder-firearm (Count 3), second-degree murder-firearm (Count 4), UUW-firearm (Count 5), and FIP-firearm (Count 6)) with the charges from the May 2022 shooting of V (first-degree murder-firearm (Count 7), second-degree murder-firearm (Count 8), UUW-firearm (Count 9), and FIP-firearm (Count 10)). As noted, defendant bore the burden to establish a case-specific theory of prejudice “beyond the prejudice that is inherent to the joinder of unrelated charges.” Delaney, 370 Or at 566. “The theory must be based on something more than the fact that charges are unrelated offenses or solely on the basis that evidence will be introduced that would not be cross-admissible in separate trials.” State v. Depas, 350 Or App 1, 5, 593 P3d 736 (2026). Recognized theories include “(1) that the jury will confuse or cumulate the evidence; (2) that the defendant may be confounded in presenting conflicting defenses; and (3) that the jury will conclude that the defendant is guilty of one crime and therefore guilty of others.” Delaney, 370 Or at 575. “[T]he requirement for a showing of case-specific substantial prejudice is not meant to prohibit any consideration of general concerns; rather, it signifies that those general concerns, standing alone, will be insufficient to show substantial prejudice that could affect the fairness of the trial.” Hernandez-Esteban, 374 Or at 316 (emphasis in original). “In other words, consideration of those general concerns should occur within the grounding framework of the specific facts of the case and the evidence at hand.” Id. “General arguments of prejudice that could be made in any case in which charges are joined are not sufficient to demonstrate substantial prejudice when the defendant fails to relate those arguments to the specific facts of the defendant's case.” State v. Tidwell, 259 Or App 152, 155, 313 P3d 345 (2013), rev den, 355 Or 142 (2014). Moreover, “the probable effectiveness of limiting instructions to the jury is relevant to whether the defendant has established substantial prejudice.” Id.

We conclude that defendant failed to demonstrate that he was substantially prejudiced by joinder of the charges arising from the April 2022 shooting of G with those arising from the May 2022 shooting of V. Defendant's theory of substantial prejudice was that propensity evidence can rise to the level of substantial prejudice and that the degree of prejudice from joinder of the murder charges was sufficient to meet the substantial prejudice threshold. The challenge with defendant's arguments is that he did not establish that this was so based on the trial court record at the time the court ruled on his motion to sever, focusing primarily on his argument that none of the evidence would be cross-admissible in separate trials on the charges related to the April 2022 shooting of G and those related to the May 2022 shooting of V. But defendant failed to demonstrate how the lack of cross-admissibility of evidence of the two separate shooting incidents rose to the level of substantial prejudice based on the facts and evidence in this case. See State v. Crummett, 274 Or App 618, 621-23, 361 P3d 644 (2015), rev den, 359 Or 525 (2016) (holding that “conclusory allegations” about the type of prejudice that might result from the joinder of 42 charges of sex offenses against six victims over the course of five years were legally insufficient to establish substantial prejudice).

Defendant attempted to ground his substantial prejudice arguments in the specific facts and evidence by arguing that he was prejudiced because the shootings of G and V occurred within less than two weeks of each other, the toolmark evidence would be “confusing” for the jury, and joinder of the murder charges impeded his ability to assert a defense of self-defense on the murder charges arising from either shooting. Although those arguments are more specific to the facts and evidence in this case, defendant nonetheless failed to demonstrate that they gave rise to substantial prejudice to him. Defendant did not articulate and demonstrate how the temporal proximity of the two shootings was likely to prejudice defendant, why the toolmark evidence would be confusing for a jury, or that he was likely to assert self-defense and that such a defense was supported by the record. See State v. Lopez-Martinez, 345 Or App 625, 630, 583 P3d 563 (2025), rev den, 375 Or 332 (2026) (concluding that, given the defendant's reliance on “general assertions” and failure to “articulate ‘how and why’ the complexity of the anticipated evidence would generate a risk of jury confusion,” the defendant had failed to demonstrate substantial prejudice). Those arguments, thus, fail to “demonstrate a degree of prejudice beyond the prejudice that is inherent to the joinder of unrelated charges.” Delaney, 370 Or at 566.

Moreover, we conclude that whatever prejudice to defendant that may have resulted from joinder of the charges arising from the April 2022 shooting of G with those arising from the May 2022 shooting of V could be cured by limiting instructions to the jury, as the trial court recognized. We therefore conclude that the trial court did not err in denying defendant's motion to sever the charges related to the April 2022 shooting of G from those related to the May 2022 shooting of V.

Convictions on Counts 1 and 2 reversed and remanded; otherwise affirmed.

FOOTNOTES

1.   A jury also found defendant guilty of two counts of second-degree murder with a firearm. Those verdicts merged with the jury's verdicts on the first-degree murder-firearm counts.

2.   In his opening brief, defendant argues that we should consider the entire trial court record in this case in evaluating his claims that he was substantially prejudiced by joinder. However, the principle that we limit our review to the record before the court at the time of the motion to sever is firmly established in our case law, and defendant presents no argument that those cases are plainly wrong and should be overruled. See State v. Silver, 283 Or App 847, 852, 391 P3d 962 (2017) (“We only overrule cases that are ‘plainly wrong, a rigorous standard grounded in presumptive fidelity to stare decisis.’ ” (Quoting State v. Civil, 283 Or App 395, 406, 388 P3d 1185 (2017).). We therefore reject defendant's argument and, consistent with our case law, review the record before the trial court at the time of defendant's motion to sever in evaluating whether the trial court erred in denying his motion.

3.   The indictment also included a charge of felon in possession of body armor (FIP-body armor) based on conduct occurring on May 10, 2022. The trial court dismissed that charge on the state's motion.

4.   The court noted that defendant's motion “starts with that these counts were improperly joined, but didn't the train already kind of leave the station on that? I mean, we're here, so aren't we really operating under the standard of substantial prejudice for severance?” Defendant responded that he was “happy to rely on the written filing with regard to whether or not the counts are properly joined as an initial matter unless the Court has specific questions.”

5.   Defendant has not challenged the joinder of the different offenses charged within each incident. That is, he does not argue, for example, that the UUW-firearm and FIP-firearm charges arising from the May 2021 baby shower incident are not “[o]f the same or similar character.” See ORS 132.560(1)(b)(B) (allowing joinder of charges if the offenses are alleged to have been committed by the same person and are “[b]ased on the same act or transaction”).

6.   We agree with defendant's argument on appeal that toolmark evidence used to link the April 2022 shooting of G with uncharged conduct related to the discharge of a firearm outside J's apartment later in the evening on May 23, 2021, did not “overlap” with any evidence relevant to proving the offenses arising from the May 2021 baby shower incident, which was alleged to have occurred earlier in the day and at a different location.

7.   In his opening brief, defendant argues that, “[t]o the extent the state attempted to link the two killings by motive, i.e., that defendant shoots people when he is disrespected or challenged, that link is based on a propensity inference.” (Emphasis in original.) However, defendant does not develop any argument as to how that factors into our evaluation of his claims that the charges arising from the three separate incidents were not properly joined. See Beall Transport Equipment Co. v. Southern Pacific, 186 Or App 696, 700 n 2, 64 P3d 1193, adh'd to as clarified on recons, 187 Or App 472, 68 P3d 259 (2003) (“[I]t is not this court's function to speculate as to what a party's argument might be. Nor is it our proper function to make or develop a party's argument when that party has not endeavored to do so itself.”).

8.   At the hearing on defendant's motion to sever, defendant acknowledged that “it might make sense for [him] to proceed either entering a guilty plea or waiving jury on felony possession charges” and “to enter a stipulation to a previous conviction for homicide, which would take away from the jury consideration of that fact vis-à-vis murder in the first degree,” but he noted that he had not “made a decision as to how to proceed.”

TOOKEY, P. J.