95
This is a nonprecedential memorandum opinion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 October 27, 2021; in Case No. 18CR27535, Count 2 reversed,
remanded for resentencing; otherwise affirmed; in Case No. 18CR07877,
remanded for resentencing, otherwise affirmed July 27, 2022
STATE OF OREGON,
Plaintiff-Respondent,
v.
CARL WAYNE MEIIER,
Defendant-Appellant.
Clackamas County Circuit Court
18CR07877, 18CR27535;
A172725 (Control), A172726
Douglas V. Van Dyk, Judge.
Ernest G. Lannet, Chief Defender, Criminal Appellate
Section, and Neil F. Byl, Deputy Public Defender, Office of
Public Defense Services, filed the brief for appellant.
Ellen F. Rosenblum, Attorney General, Benjamin Gutman,
Solicitor General, and Jonathan N. Schildt, Assistant Attorney
General, filed the brief for respondent.
Before Ortega, Presiding Judge, and Shorr, Judge, and
Powers, Judge.
ORTEGA, P. J.
In Case No. 18CR27535, Count 2 reversed; remanded for
resentencing; otherwise affirmed. In Case No. 18CR07877,
remanded for resentencing; otherwise affirmed.
96 State v. Meiier
ORTEGA, P. J.
Defendant appeals his convictions in two cases that
were consolidated for trial and on appeal. In the first, Case
No. 18CR07877, he was convicted of first-degree sodomy,
ORS 163.405, and three counts of first-degree sexual abuse,
ORS 163.427, concerning victim M. In the second, Case
No. 18CR27535, he was convicted of first-degree rape, ORS
163.375, first-degree sexual abuse, ORS 163.427, and thirddegree sexual abuse, ORS 163.415, concerning victim R.
On appeal, defendant argues that the trial court erred
in granting the state’s motion to consolidate the cases, in
excluding under OEC 412 evidence that the child victims
may have been sexually abused by others prior to the incidents at issue in these cases, and in denying his motion for
judgment of acquittal on the first-degree sexual abuse count
concerning victim R. With respect to the motion for judgment of acquittal, the state concedes that it did not adduce
evidence to support the first-degree sexual abuse count with
respect to victim R. As explained below, we accept the concession concerning the motion for judgment of acquittal but
reject defendant’s remaining arguments.
Turning first to the conceded issue, Count 2 in
Case No. 18CR27535 alleged that defendant unlawfully and
knowingly subjected R, a person under the age of 14, to sexual contact by touching her breast. The parties agree that
the trial court, apparently having misremembered the testimony, erroneously concluded that there was evidence that
defendant had touched R’s breast as alleged in this count.
Given that no evidence supported that count, we agree with
the parties that that conviction must be reversed.
We turn next to defendant’s argument that the trial
court erred in granting the state’s motion to consolidate the
cases. The charges in the first case involved several incidents
of abuse of M, a 10-year-old family member of defendant.
After M came forward, her cousin, R, disclosed that defendant had sexually abused her some years earlier, when she
had been 10 years old. Charges of similar offenses may be
consolidated if the evidence of them is sufficiently simple and
distinct to mitigate the dangers created by joinder, and substantial prejudice has not been established. State v. Roelle,
Nonprecedential Memo Op: 321 Or App 95 (2022) 97
261 Or App 705, 708,
323 P3d 567, rev den,
356 Or 397 (2014).
If, however, a defendant is substantially prejudiced by the
joinder, the court may order separate trials. ORS 132.560.
The party objecting to joinder bears the burden to demonstrate substantial prejudice and must “make a case-specific
argument for why joinder will create substantial prejudice.”
State v. Delaney,
314 Or App 561, 568,
498 P3d 315 (2021)
(citations omitted). Having reviewed the record, we conclude
that defendant failed to make a sufficient case-specific argument in the trial court as to why joinder would create substantial prejudice under the circumstances presented here.
The trial court did not err in consolidating the cases.
Defendant also argues that the trial court erred
in excluding pursuant to OEC 412 evidence relating to
both victims concerning prior sexual abuse by others. He
asserted in the trial court that this evidence was relevant
to prove motive or bias and was constitutionally required to
be admitted despite the strictures of OEC 412. As defendant
recognizes, however, the constitutional right is limited when
the probative value of the evidence that the defendant seeks
to elicit is substantially outweighed by the risk of prejudice,
confusion, embarrassment, or delay. State v. LeClair, 83 Or
App 121, 129,
730 P2d 609 (1986), rev den,
303 Or 74 (1987).
The trial court concluded that the evidence at issue had low
probative value, noting that defendant offered nothing to
support the supposition that having been victimized in the
past made it more likely that a victim was lying or mistaken
about the present offenses. Having reviewed the record and
counsel’s arguments to the trial court, we conclude that the
trial court correctly determined that the evidence defendant
sought to elicit about past sexual abuse of the victims had
low probative value and was not constitutionally required to
be admitted, and that the court correctly excluded it under
OEC 412.
Because the cases have been consolidated for trial
and on appeal, in this circumstance, where we reverse a
conviction in one of the cases, the appropriate disposition
is to remand both cases for resentencing. State v. Sheikh-Nur, 285 Or App 529, 540,
398 P3d 472, rev den,
361 Or 886
(2017).
98 State v. Meiier
In Case No. 18CR27535, Count 2 reversed; remanded
for resentencing; otherwise affirmed. In Case No. 18CR07877,
remanded for resentencing; otherwise affirmed.
