State v. Soto

                                    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   This is a nonprecedential memorandum opinion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 criminal 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 constituting 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 himself 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 authority, (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 modified 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 consideration when determining whether two places are qualitatively 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, concluding 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 qualitatively different than her starting place for the same reasons
that we previously articulated in Washington. 

 (a reasonable factfinder could find that the defendant 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 reasonable 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 sufficient evidence that showed that defendant intended to interfere 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 substantially with [the victim]’s personal liberty, including her ‘freedom 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 facilitate[d] and further[ed] the commission of, defendant’s other
crimes.
                   CONSECUTIVE SENTENCES
        In his second assignment of error, defendant contends 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 subsection (5)(a) was proper.3
                    MOTION TO SEVER
         In his third and fourth assignments of error, defendant 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 apartment, 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 uninterrupted course of conduct” only if it finds one of the following:
         “(a) That the criminal offense for which a consecutive sentence is contemplated was not merely an incidental violation of a separate statutory provision 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 contemplated 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 subsection (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, defendant 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 joinder 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) provides 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 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.”
         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 “logically 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 constitution. 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 committed 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 precipitated 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 joinder.6 We have long recognized that the possibility of prejudice exists, “at least in the abstract, in virtually every situation 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 modified 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 identifies 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 proceeding 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 concluding that the evidence would have been mutually admissible 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 joinder, 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 “sufficiently 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 crossexaminations.” 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 uncomplicated 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, defendant’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 prevented 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 questioned 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 understand 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 pertaining 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 defendant 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 specifically 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 substantial 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), discussing 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 instructions.” The state agreed, and in its response to the motion
to sever noted, “[a]s an additional precaution, a jury instruction could be given to the jury to ensure charges are considered 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 disposition, I need not expound on these issues further. Ultimately,
I concur in the judgment here because I perceive the resolution 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.