The opinion
300 September 25, 2025 No. 39
IN THE SUPREME COURT OF THE
STATE OF OREGON
STATE OF OREGON,
Respondent on Review,
v.
FRANCISCO JAVIER HERNANDEZ-ESTEBAN,
Petitioner on Review.
STATE OF OREGON,
Petitioner on Review,
v.
FRANCISCO JAVIER HERNANDEZ-ESTEBAN,
Respondent on Review.
(CC 19CR60141) (CA A177043)
(SC S070848 (Control), S070847)
En Banc
On review from the Court of Appeals.*
Argued and submitted January 9, 2025.
Sara F. Werboff, Deputy Public Defender, Oregon Public
Defense Commission, Salem, argued the cause and filed the
briefs for Francisco Javier Hernandez-Esteban. Also on the
briefs was Ernest G. Lannet, Chief Deputy Defender.
Doug Petrina, Assistant Attorney General, Salem, argued
the cause and filed the briefs for State of Oregon. Also on
the briefs were Ellen Rosenblum, Attorney General, and
Benjamin Gutman, Solicitor General.
Sarah Laidlaw, Oregon Justice Resource Center, Portland,
filed the brief for amicus curiae Oregon Justice Resource
Center.
______________
* Appeal from Washington County Circuit Court, Ricardo J. Menchaca,
Judge. 330 Or App 34, 543 P3d 154 (2024).
Cite as 374 Or 300 (2025) 301
JAMES, J.
The decision of the Court of Appeals is affirmed in part
and reversed in part. The judgment of the circuit court
is affirmed in part and reversed in part, and the case is
remanded to the circuit court for further proceedings.
302 State v. Hernandez-Esteban
JAMES, J.
In this criminal case, defendant was charged with
several sex abuse crimes involving two victims—A and M,
both minors—in a single indictment. Before trial, defen-
dant filed a motion to sever, arguing that he was substan-
tially prejudiced by the joinder of the two sets of charges
and asserting that—under ORS 132.560(3)—he was enti-
tled either to the severance of the two sets of charges or to
some other relief. The trial court denied that motion, and
the case proceeded to trial. A jury convicted defendant on
all charges involving A and one count of first-degree sex-
ual abuse, ORS 163.427, involving M. At sentencing, defen-
dant argued that the imposition of a mandatory 75-month
Measure 11 sentence to his conviction concerning M would
be unconstitutionally disproportionate under Article I, sec-
tion 16, of the Oregon Constitution, but the court rejected
defendant’s argument and imposed the 75-month sentence.
On appeal, the Court of Appeals affirmed the trial court’s
denial of defendant’s motion to sever but concluded that the
imposition of the Measure 11 sentence was unconstitution-
ally disproportionate. State v. Hernandez-Esteban, 330 Or
App 34, 543 P3d 154 (2024). The state and defendant cross-
petitioned for review, and we allowed review of both issues.
We conclude that the trial court erred in denying
defendant’s motion to sever. In State v. Delaney, 370 Or 554,
556, 522 P3d 855 (2022), we explained that a party seek-
ing severance under ORS 132.560(3) must “identify a case-
specific theory of substantial prejudice.” On the record pre-
sented in this case, we conclude that defendant did articulate
a sufficient case-specific theory of substantial prejudice,
supported by the record, so as to warrant relief under ORS
132.560(3). As we will explain, when a defendant makes the
requisite showing of substantial prejudice, a trial court is
required to craft some remedy; that is, the trial court in that
instance has no discretion to craft no remedy at all—and
thereby allow the trial to proceed. And, although the trial
court has discretion to decide what remedy to craft, some
action that remediates the identified substantial prejudice,
sufficient to reduce it to the level of prejudice inherent in the
joinder of criminal charges, is required. Here, because the
Cite as 374 Or 300 (2025) 303
trial court did not order any remedy following defendant’s
sufficient showing of substantial prejudice, we conclude that
the trial court erred in denying defendant’s motion to sever.
However, we conclude that such error was harmless as to A.
We therefore affirm the trial court’s judgment on the counts
related to A, but reverse on the single count related to M. In
light of that disposition, we need not reach the sentencing
issue raised by the state on review.
I. BACKGROUND
A. Historical Facts
We take the historical facts from the record before
the trial court at the time of defendant’s motion to sever.1
See Delaney, 370 Or at 557 n 1. The victims—A and M—are
cousins, and defendant was A’s mother’s boyfriend. In 2014—
when A was approximately 12 years old—defendant moved
into A’s home. According to the state, shortly after he moved
in, defendant would go into A’s room at night to touch her
vagina and buttocks. A testified that she would wake up
when defendant did so and that defendant engaged in that
behavior almost nightly for four years. Although A did not
initially disclose defendant’s activity, she eventually told a
family member. That family member encouraged A to tell her
mother, but honored A’s request to not disclose what was hap-
pening. In 2018, A moved out of the home she shared with her
mother and defendant and moved in with M’s mother. When
she moved out, A did not tell her mother about what defen-
dant was doing, but she did tell her mother that she would
move back in if defendant was no longer in the home.
In May 2019, M—who was 11 years old at the
time—told a school counselor that defendant had kissed her
on the lips and touched her leg and butt. She also reported
that he made her feel uncomfortable by looking her up and
down. Law enforcement began to investigate M’s allegations
and, when they spoke to M’s mother, they learned that A
1
The state argues that we should view the record narrowly and limit our
review to “the indictment and the state’s recitation of the facts in its [brief-
ing on the motion to sever].” We decline to take that approach, because to do
so would ignore the full record before the trial court at the time of the motion.
Defendant’s motion to sever was not the only motion at issue when the trial court
ruled. Instead, that motion was submitted alongside the parties’ various pretrial
motions, and the trial court conducted a joint hearing.
304 State v. Hernandez-Esteban
had moved out of her own mother’s house because of defen-
dant. Law enforcement then contacted A, and she made dis-
closures about what defendant had done to her.
Both girls were then interviewed at CARES NW.
During M’s interview, she reported that she had been at
her cousin’s house playing a game of chase or keep away
in the kitchen when defendant grabbed her and kissed her
on the lips. She also reported that, on a separate occasion,
defendant had met her in the hallway when she came out
of the bathroom and hugged her from behind. She said this
made her feel uncomfortable because she could feel his “pri-
vate part” “getting up.” Aside from her allegations against
defendant, M also claimed that her mother’s then-husband
had abused her by touching her sexually. A, meanwhile,
reported that defendant’s long-time abuse was near con-
stant. She explained that defendant always touched her
over her clothes and, in addition to touching her at night, he
would also regularly grab and squeeze her buttocks outside
of her clothes. Defendant was interviewed by law enforce-
ment, but he denied any wrongdoing, stating that the girls
were making up the allegations.
B. Procedural Facts
The state charged defendant in a single indictment
with 12 counts of child sex abuse for his alleged abuses of A
and M. At the time of the underlying criminal proceedings,
A was 18 years old, and M was 13. Ten of those counts—eight
counts of first-degree sexual abuse, ORS 163.4272 (Counts 3
to 10), and two counts of third-degree sexual abuse, ORS
163.4153 (Counts 11 and 12)—alleged that defendant had
2
ORS 163.427 provides, in part:
“(1) A person commits the crime of sexual abuse in the first degree when
that person:
“(a) Subjects another person to sexual contact and:
“(A) The victim is less than 14 years of age.”
3
ORS 163.415 provides, in part:
“(1) A person commits the crime of sexual abuse in the third degree if:
“(a) The person subjects another person to sexual contact and:
“* * * * *
“(B) The victim is incapable of consent by reason of being under 18 years
of age[.]”
Cite as 374 Or 300 (2025) 305
touched the vagina of A on several occasions. The remain-
ing two counts alleged that defendant had committed first-
degree sexual abuse, ORS 163.427, against M for “touching
[M’s] lips or mouth” (Count 1) and “touching [M’s] buttocks”
(Count 2) on separate occasions. In the indictment, the state
asserted that it was permitted to charge multiple counts
in a single indictment because each count was “a separate
act and transaction but [w]as part of crimes that are of the
same or similar character [as the other charges] and a com-
mon scheme and plan.”
Shortly before trial, defendant moved to sever
the two charges involving M (Counts 1 and 2) from the
10 charges involving A (Counts 3-12). Although defendant
conceded that joinder was permissible under ORS 132.560
(1)(b)(A)—because each of the charges was “[o]f the same or
similar character” as the others—he asserted that the join-
der of the two sets of charges substantially prejudiced his
interests in a fair trial because the state’s asserted basis
for joinder was minimal and the prejudice to defendant
would be great. Defendant argued that—at the time of the
motion—the state’s discovery did not provide any evidence
that defendant had some overarching criminal scheme or
plan tying the two victims together, ORS 132.460(1)(b)(C),
or that a joint trial was in any way necessary to explain the
two sets of charges. Accordingly, defendant asserted that
the state’s interest in joining the two sets of charges did not
extend beyond the general interests of promoting trial econ-
omy and judicial efficiency.
On the other hand, defendant continued, joinder of
the two sets of charges caused him substantial prejudice
beyond that inherent to the joinder of unrelated criminal
charges. In his motion, defendant asserted that the jury was
likely to impermissibly use evidence of the charges concern-
ing A as evidence when evaluating the charges concerning
M and vice versa. In doing so, defendant analogized the
unfair prejudice occasioned by the joinder to the prejudice
and due process concerns embodied in the provisions of the
evidence code concerning character evidence. Accordingly,
defendant requested that the trial court “conduct a balanc-
ing test under the Due Process Clause of the United States
306 State v. Hernandez-Esteban
Constitution, as essentially codified at OEC 403,” in consid-
ering whether the charges should be severed.
In addition to requesting that the court sever the
two groups of charges from each other, defendant alterna-
tively requested relief in the form of separate opening state-
ments and closing arguments, to help ameliorate the alleged
prejudice:
“Given the bare minimum necessary for joinder in this
case, the cases may be tried together, there is no reason the
evidence should be presented—or the arguments for and
against culpability—in a manner that would likely lead to
evidence for one set of charges to be considered in a case
with a different set of charges.”
Defendant supplemented his argument with a dec-
laration from a psychologist, Robert Heroy, whom the court
found qualified to testify as an expert in issues related to
juror behavior and decision-making. In that declaration, as
discussed in greater detail below, defendant’s expert pro-
vided an overview of the scholarly research on the impact
of joinder on criminal cases and advanced several theories
as to how joinder would substantially prejudice defendant in
this case.
Defendant’s expert first asserted that, insofar as
joinder likely results in an increase in conviction rates, it
also was likely to increase the chances of a conviction for
this defendant. Indeed, he explained, the results of several
studies showed “that joinder, by itself, resulted in a signifi-
cant increase in conviction rates across all charged crimes”
and that the impact “was even more robust in situations
where the charges were either the same or similar.” Based
on that research, defendant’s expert posited that joinder
would increase the likelihood of conviction for defendant
based on the sheer quantity of charges:
“With the current joined charging instrument, [defendant]
will be charged with 12 crimes that will be tried simultane-
ously as opposed to being tried for two cases: one with two
charges and a second with ten charges. * * * [J]oinder alone
will lead to a greater likelihood of conviction for [defen-
dant] due not to the quality of the charges but their quan-
tity. Additionally, the charges against [defendant], save for
Cite as 374 Or 300 (2025) 307
two, are identical (sexual assault in the first degree x10)
and the two remaining charges are practically identical to
the other ten (sexual assault in the third degree). This will
increase the likely impact of the joinder to be more robust
than it might otherwise have been.”
Defendant’s expert next identified certain cognitive
limitations in jury decision-making as a potential source
of prejudice. Indeed, he explained, a range of studies con-
cerning cognitive load, peripheral processing, and heuristic
thinking provide support for the proposition that requiring
jurors to make multiple determinations of guilt—especially
in the context of child sex abuse—puts “significant stress
on the jurors[’] cognitive system.” Applying those principles
here, defendant’s expert opined:
“From the discovery that has been reviewed by this
writer, it seems likely that to decide on these 12 charges,
each alleging a separate and distinct event that is to be
considered separately and distinctly from the others, the
jury will be presented with multiple testimonies from
both alleged victims, multiple law enforcement officers,
and multiple social workers and teachers who each have
played a role in one, but not always both, of the girls’ story.
Additionally, while the overlap in social workers, CARES
employees, and investigators between the cases of [A] and
[M] will reduce the total number of people the jurors have
to keep organized, aiding the cognitive load, it will simul-
taneously exacerbate cognitive load by requiring jurors to
navigate the problems associated with source confusion,
and having to parse testimony during deliberation, after
days of court proceedings, trying to remember when a wit-
ness spoke on a topic, was it related to [M], [A], or both.”
Evidence accumulation, defendant’s expert explained,
has an inverse relationship with the perceived strength of
defense evidence. In other words, “[a]s evidence accumulates,
it has a negative impact on perceived strength of defense
evidence and a positive impact on perceived strength of
prosecution evidence[,] and the evidence presented for one
charge increasingly serves to reinforce evidence in the oth-
ers as accumulation continues.” Where, as here, defendant
faced 12 nearly identical charges for acts committed against
two victims over a four-year period, the prejudicial impact
308 State v. Hernandez-Esteban
of evidence accumulation and confusion would be severe. As
defendant’s expert explained:
“Evidence will necessarily accumulate significantly in
this case as both [M] and [A] will likely testify and dis-
cuss events that are completely unconnected by time, place,
and alleged victim (as neither is a witness for the other).
Confusion of evidence is also likely due not only to the num-
ber of charges but also their similar or identical nature.”
Another theory concerned the danger of the jury
using evidence of other crimes to fill in evidentiary gaps.
Defendant’s expert explained that “[j]urors will use evi-
dence of the other charges in a joined trial to fill gaps in
evidence when looking for a reason to convict * * * because
of the creation of the ‘bad person’ identity and the increased
probability of bad people doing bad things.” Applying that
concept to defendant’s case, he explained:
“The considerations regarding criminal inference are
substantially prejudicial to [defendant] in this case. The
significant number of crimes alleged will increase the
likelihood that [defendant] will be assigned the identity of
‘criminal’ even though at the time of identity assignment,
he will not have been convicted of any of those charges.
Additionally, the increased likelihood of representative-
ness and confirmation bias associated with the creation
of a criminal schema will make it more likely that evi-
dence associated with the alleged incident with [M] and
the alleged incidents with [A] will support each other when
they would be unlikely to be considered at the same time if
tried separately.”
At the hearing on defendant’s motion to sever,
defendant’s expert addressed in greater detail how joinder
would substantially prejudice defendant as to the charges
involving M, explaining that “[t]he real difference is going to
be in the case for [M], where the amount of evidence is rela-
tively small as compared to for [A].” Based on his review of
discovery, defendant’s expert opined that, although M’s case
had a weaker presentation and was more equivocal, it would
nevertheless enjoy the benefit of proximity to A’s case due,
in part, to the higher number of charges associated with A
as well as A’s more cogent story-telling abilities. That would
compound the risk that jurors would determine defendant’s
Cite as 374 Or 300 (2025) 309
guilt as to the charges involving M not on the evidence pre-
sented but, rather, by recourse to such heuristics as the
criminal schema. Indeed, he testified:
“And so while the relatively smaller amount of evidence
and the weaker presentation that you’ll get for [M] would be
bolstered by the higher number of charges, the more cogent
story-telling abilities of [A], and so that would then help
the—it would kind of work to create that criminal schema
of, oh, okay, I can believe, based on what [A] is saying, that
rather—sorry—if a juror were to say, based on things I’ve
heard from [A], I believe that it is possible that [defendant]
sexually abused her. If it happened here, it then increases
the odds [of] what * * * would have happened with [M].”
Defendant’s expert further testified about the con-
cept of evidence spillover—a phenomenon in which a jury
takes the strength of one case and applies it to another. He
then applied that concept to the discovery that he had been
provided in defendant’s case:
“And if, after hearing, again, all of the evidence—
this will be all of the evidence related to [A] and [M], the
juror—a juror decides that there is sufficient evidence to
believe that the defendant is guilty—or is guilty of sexu-
ally abusing a child, it fundamentally changes the story
from—I believe the ones with [M] happened temporally
later.
“So, for the sake of this, we’ll say that the juror finds
that there is sufficient evidence to believe that [defendant]
sexually abused [A]. It changes the story when you get to
considerations what happened with [M] from [M] was given
a hug by her uncle, to [M] was given a hug by her uncle who
abuses—who sexually abuses children. And what do peo-
ple who sexually abuse children do? They sexually abuse
children.
“And so that’s how that fundamentally changes the
story and makes it sort of easier then to believe, well, yeah.
I mean, she was hugged by a guy that sexually abuses kids.
I believe that he would have done that there. It fits with
the pattern and it fits with the belief of who I believe the
defense—the defendant to be.”
Returning to the disparity in the strength of the two
sets of charges, defendant’s expert then noted that “strong
310 State v. Hernandez-Esteban
evidence buoys weak evidence, as opposed to weak evidence
diluting strong,” such that, if a juror had gaps to fill with
M’s evidence, that juror could fill the gaps with the evidence
concerning A. He further emphasized that jury instructions
would not effectively ameliorate the resulting substantial
prejudice, because it would be difficult for jurors to let go of
the idea that defendant was a sexual abuser when consider-
ing the evidence concerning M.
Defense counsel focused largely on that concern in
his argument at the hearing on defendant’s motion to sever:
“The—you know, because he—because he’s a sexual
predator, when he hugged—or because he’s a sex offender,
because he’s—you know, he acts with, I guess, sexual intent
towards a different child, that he acts with that same intent
sexual intent towards the other child when he hugs her.
“* * * * *
“So, because he did it to one person, he must have done
it to the other person, and that’s why we’re going to find
him guilty.
“* * * * *
“So, they will hear evidence of [M’s] allegations, but
because they’ve already heard evidence of [A’s] allegations,
then they’ll give it more weight. That’s one way of looking
at it.
“Essentially, this is either impermissible propensity
evidence or if it’s not propensity evidence, the State needs
to identify what the evidence would be used for regarding
[M] in the allegations against [A] or the allegations of [A]
against [M].
“But either way, Judge, we ask that it be identified, and
then Court does a balancing test.”
(Emphasis added.)
In response, the state argued that the court should
deny defendant’s motion to sever because the charges for
each victim were properly joined and were otherwise “inex-
tricably linked,” in that (1) there was evidentiary overlap
in the locations where the alleged abuse had occurred, and
(2) A had disclosed only after learning that M had disclosed
Cite as 374 Or 300 (2025) 311
what had happened to her. The state also asserted that there
was “no danger of juror confusion” because the charges and
supporting evidence were simple and distinct.
Following the hearing, the trial court denied defen-
dant’s motion without explanation:
“Okay. Thank you. I’m going to deny the motion to sever.
And what shall we take up next?”
Defendant then asked for further clarification and particu-
lar findings, but the trial court did not elaborate:
“[DEFENSE COUNSEL:] Your Honor, can we go back
to the severance? Can we get a ruling on the record as to
the due process balancing on the severance?
“[THE COURT:] I’m happy to tell the Court of Appeals
that I’ve done the balancing test and that I’ve denied it.
And if that’s not adequate, we’ll do it again.
“[DEFENSE COUNSEL:] Okay. Thank you, Your
Honor.”
The case proceeded to trial, and the jury convicted
defendant on all charges involving A and one count of first-
degree sexual abuse involving M. At sentencing, the trial
court rejected a challenge from defendant that the man-
datory 75-month Measure 11 sentence that applied to the
conviction as to M was unconstitutionally disproportion-
ate under Article I, section 16, of the Oregon Constitution
because the underlying conduct—a kiss on the lips—was
innocuous compared to the other conduct criminalized by
ORS 163.427.
Defendant appealed, challenging both the trial
court’s denial of his motion to sever and the constitution-
ality of his sentence on Count 1. With respect to the sever-
ance issue, defendant argued that he had been substantially
prejudiced because the joinder of the two sets of charges had
deprived him of the protection of evidence rules limiting
propensity evidence and otherwise rendered his trial fun-
damentally unfair in violation of due process. On the sen-
tencing issue, defendant argued that his 75-month sentence
for briefly kissing M on the lips was unconstitutionally dis-
proportionate because the underlying harm of his conduct
312 State v. Hernandez-Esteban
was less than the typical harm in similar cases, penalties
for other crimes criminalizing the same or more serious
conduct result in significantly less severe sentences, and
his prior criminal history did not demonstrate that he was
incorrigible or incapable of reform.
In a published opinion, the Court of Appeals affirmed
defendant’s convictions, but reversed his Measure 11
sentence for the conduct concerning M, reasoning that that
sentence for kissing M on the lips had been unconstitu-
tionally disproportionate. Hernandez-Esteban, 330 Or App
at 35. In affirming the trial court’s denial of defendant’s
motion to sever, the Court of Appeals concluded—with little
discussion—that, “[a]lthough defendant tried to identify a
case-specific theory of substantial prejudice in his motion to
sever, [the court] agree[s] with the state that he ultimately
failed to identify any substantial prejudice that went beyond
the prejudice inherent in the joinder of separate charges for
similar offenses involving different victims.” Id. at 37.4
The state and defendant then cross-petitioned this
court for review, and we allowed review of both petitions.
With respect to the state’s petition, we allowed review to
determine whether the Court of Appeals erred in concluding
that defendant’s sentence on Count 1 was unconstitutionally
disproportionate under Article I, section 16, of the Oregon
Constitution. And we allowed review of defendant’s peti-
tion to determine whether he had established “case-specific
prejudice” such that the trial court should have severed the
4
Defendant also challenged a decision by the trial court to admit A’s out-
of-court statements under the hearsay exception in OEC 803(18a)(b), which pro-
vides for admission of out-court-statements concerning certain acts of abuse, if
such a statement was made by a “child declarant.” According to defendant, that
hearsay exception applied only if the victim was a “child declarant” both when
they made the statements and when the victim testified at trial. Because A was
18 years old at the time of trial, defendant contended, that hearsay exception did
not apply, and the court should have excluded A’s out-of-court statements. The
Court of Appeals rejected that argument, and we allowed review of that eviden-
tiary issue, in addition to the severance issue.
That evidentiary issue is identical to the issue that we recently decided in
State v. Akins, 373 Or 476, 478, 568 P3d 174 (2025). In that case, we concluded
that the exception in OEC 803(18a)(b) applied so long as the declarant was a child
when they made the statements, even if the declarant had become an adult by the
time of their trial testimony. Because that decision is dispositive of defendant’s
hearsay issue in this case, we affirm the Court of Appeals decision on that point
without further discussion.
Cite as 374 Or 300 (2025) 313
charges involving A from those involving M.5 We conclude
that the trial court erred in denying defendant’s motion to
sever. However, we further determine that error was harm-
less as to A. We therefore affirm the trial court’s judgment
with regards to the counts concerning A, but reverse on the
single count concerning M and remand to the trial court for
a new trial on that count. In light of that disposition, we do
not reach the sentencing issue posed by the state.
II. ANALYSIS
A. Background Discussion
Joinder and severance in criminal cases are two
distinct, though related, concepts, both of which are set
forth in ORS 132.560. The decision to join charges is usu-
ally made, initially and solely, by the state via the charging
document, although occasionally the state will move to join
two separate charging instruments. As a general matter,
charges are not presumptively joined in Oregon. Rather, the
presumption is that charges will be tried separately, unless
a specific exception applies that would permit joinder: “A
charging instrument must charge but one offense, and in
one form only,” unless a statutory exception applies. ORS
132.560(1) (emphasis added).
Because the initial joinder decision is often made
unilaterally by the state at charging, once the case enters
the adversarial process, the initial question is often whether
the charges actually qualified for joinder. A defendant can
challenge the propriety of joinder via a motion challenging
joinder. That is not synonymous with a motion for sever-
ance. 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:
“Two or more offenses may be charged in the same
charging instrument in a separate count for each offense if
the offenses charged are alleged to have been committed by
the same person or persons and are:
5
We also allowed review to consider whether the trial court’s failure to sever
the charges violated defendant’s constitutional due process rights. Because we
conclude that the trial court erred in denying defendant’s motion to sever under
ORS 132.560(3), we do not reach defendant’s constitutional arguments.
314 State v. Hernandez-Esteban
“(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.”
If the state cannot meet its burden to show that one of those
exceptions applies, then severance is required, as the counts
never were properly joined.
However, even where criminal charges are properly
joined under a statutory exception, ORS 132.560(3) autho-
rizes a trial court to sever charges—or order other relief—
under certain circumstances:
“If it appears, upon motion, that the state or defendant
is substantially prejudiced by a joinder of offenses under
subsection (1) or (2) of this section, the court may order an
election or separate trials of counts or provide whatever
other relief justice requires.”6
Accordingly, motions to sever—like defendant’s
motion in this case—are distinct from motions challenging
joinder. A motion to sever begins with the premise that the
state has met its burden to establish that one of the exceptions
in ORS 132.560(1)(b) applies, but nevertheless asks the court
to exercise its discretionary power under ORS 132.560(3) to
sever charges that otherwise have been properly joined. The
court has that authority once the party moving for severance
has met their burden to establish substantial prejudice—
that is, “the kind of potential injury or harm that threatens
the defendant’s interest in a fair trial.” See Delaney, 370 Or
at 564-66 (explaining that two-step process).
Here, defendant did not challenge the propriety of
the initial joinder decision but moved only to sever under
ORS 132.560(3). Accordingly, the issue before us involves
two questions, simply stated: (1) whether the facts stated in
the motion, supported by the record, show the existence of
substantial prejudice; and, if so, (2) “the appropriate form of
relief. “State v. Miller, 327 Or 622, 629, 969 P2d 1006 (1998).
The first is a question of law, reviewed for errors of law. The
6
ORS 132.560(2) permits a trial court to consolidate cases based on the join-
der criteria set out in ORS 132.560(1)(b).
Cite as 374 Or 300 (2025) 315
second is a discretionary action by the trial court, reviewed
for abuse of discretion. Delaney, 370 Or at 563.
B. Requirement for Case-Specific Substantial Prejudice
The joinder of charges always carries some inher-
ent risk of prejudice to the defendant, because increasing the
number of charges that a jury must consider may increase
the likelihood that it would convict for impermissible charac-
ter reasons. Therefore, this court held in Delaney, 370 Or at
556, that a defendant must establish a “case-specific theory of
substantial prejudice” that is more than the prejudice inher-
ent whenever a jury is tasked with deciding whether a defen-
dant may have committed multiple offenses. We based that
holding on three principles that we derived from our previous
decisions on motions to sever made under ORS 132.560(3):
“First, claims of prejudice arising from joinder are
evaluated on a ‘case-by-case’ basis to determine whether
the defendant has identified the kind of potential injury
or harm that threatens the defendant’s interest in a fair
trial. Miller, 327 Or at 627, 629. Second, to establish that
the defendant was prejudiced by joinder, the defendant
must articulate a case-specific theory of prejudice. [State v.
Thompson, 328 Or 248, 257, 971 P2d 879 (1999).] And third,
the defendant’s theory must demonstrate a degree of preju-
dice beyond the prejudice that is inherent to the joinder of
unrelated charges. Miller, 327 Or at 634.”
Delaney, 370 Or at 566.
In Miller, the defendant argued that this court
should announce a categorical rule that substantial preju-
dice exists where (1) the accusatory instrument charges mul-
tiple unrelated offenses involving violence or sexual assault;
(2) the court would admit evidence that would not be admissi-
ble if the charges were tried separately; and (3) the defendant
chooses not to testify in his defense against each offense. 327
Or at 629. We rejected that categorical rule, explaining that
“[c]ourts apply few legal standards that are more case spe-
cific than the standard of prejudice.” Id.
We have since reaffirmed—on several occasions—
that a generic theory of prejudice is insufficient to meet the
requirements of ORS 132.560(3). See State v. Taylor, 364 Or
316 State v. Hernandez-Esteban
364, 378, 434 P3d 331 (2019) (rejecting the defendant’s argu-
ment, because “he identifie[d] no prejudice apart from the
generic concern that admitting other-acts evidence creates
a danger ‘that the jurors will convict a defendant based, not
upon the evidence, but upon their perception of the defen-
dant’s bad character’ ”); State v. Barone, 329 Or 210, 217, 986
P2d 5 (1999) (rejecting as generic the defendant’s argument
that “it [was] ‘obvious’ that joinder of the charges was ‘highly
inflammatory’ and that the ‘unfair prejudice of consolidat-
ing these cases was so overwhelming as to prevent the fair
trial on any of [the] alleged crimes’ ”); State v. Thompson,
328 Or 248, 257, 971 P2d 879 (1999) (rejecting as generic the
defendant’s argument that, “where the offenses are distinct
in time, place and evidence, defendant runs the risk that
any adverse effect from one case will influence the jury’s
consideration of the other case”).
That is not to say that the concepts underlying
those generalized concerns are not properly considered.
That jurors might be induced to convict a defendant based
upon perception, not evidence, is a legitimate concern. So,
too, is the possibility that cross-admissible evidence might
confuse the jury or induce them to render a verdict based
on propensity. “Case-specific” substantial prejudice does
not require prejudice that is necessarily unique to the case
itself. Accordingly, the 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. 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.
Grounding the showing of substantial prejudice of
joinder to the facts of the case further requires that a defen-
dant’s theory of prejudice be fairly presented by the record
before the trial court at the time of the motion to sever. For
example, in Miller, 327 Or 622, the defendant articulated a
case-specific theory of substantial prejudice in support of his
proposed categorical rule discussed above. Specifically, the
defendant argued that “a joint trial infringed his right not
Cite as 374 Or 300 (2025) 317
to testify regarding some of the charges against him.” Id.
at 634. In denying the defendant’s motion pretrial, the trial
court had made a corroborating—albeit qualified—finding
that “ ‘defendant may not wish to testify regarding one of the
events.’ ” Id. (emphasis omitted). On review, this court also
rejected the defendant’s argument specifically because the
record did not provide sufficient support for his theory:
“Defendant filed his motion to sever before trial and
renewed his motion after the state finished offering evi-
dence about the first of the two incidents. At those points in
the proceeding, defendant did not know, or at least did not
establish, whether he would testify and, if he did, whether
he would offer evidence about the first or second incident,
or both. We conclude that defendant was so noncommittal
about his desire not to testify that his claim, viewed alone
or in conjunction with his other arguments, failed to show
that a joint trial would prejudice him.”
Id. at 634-35.
This court similarly rejected the defendant’s case-
specific theory of substantial prejudice in Delaney, 370 Or
at 556, because the record was insufficient to support it. In
that case, the defendant had argued before the trial court
that he would be substantially prejudiced by testimony
about similar uncharged bad acts—specifically, anticipated
testimony from one of the victims that she decided to come
forward because she had “heard” that the defendant had
“done similar things to other women.” Id. at 576. In response
to that argument, the prosecutor told the court that the vic-
tim had expressed a number of reasons for coming forward.
The defendant did not push for clarification on whether that
meant that the state was disavowing the challenged testi-
mony. On review in this court, we rejected defendant’s argu-
ment not only because the record could be understood in
multiple ways, but also in recognition of this court’s general
practice, in other contexts, of assuming that a trial court
resolves preliminary questions in the light most favorable to
its legal ruling. Id. at 577.
In addition to explaining what theories of prejudice
are insufficient to meet the substantial prejudice standard,
this court has also provided guidance on what potential
318 State v. Hernandez-Esteban
theories of prejudice may be viable. In Delaney, we explained
that, in enacting the current version of ORS 132.560(3), the
legislature intended to adopt the federal framework for join-
der and severance of criminal charges. See id. at 569-71 (ana-
lyzing legislative history of ORS 132.560). This court then
outlined three nonexclusive theories of substantial prejudice
that had been endorsed by the federal courts in appropriate
cases (i.e., where they were properly grounded in the facts and
evidence of the case at hand): “(1) that the jury will confuse
or cumulate the evidence; (2) that the defendant may be con-
founded in presenting conflicting defenses; and (3) that the
jury will conclude that the defendant is guilty of one crime
and therefore guilty of others.” Id. at 575 (citation omitted).
We also clarified that, under federal case law, a party
may be substantially prejudiced by the joinder of charges
“even where evidence of the joined charges is ‘simple and
distinct.’ ” Id. at 573; see also United States v. Foutz, 540 F2d
733, 738 n 5 (4th Cir 1976) (explaining that, although “sim-
ple and distinct” evidence may mitigate concerns about con-
fusing and cumulative evidence, “[i]t does not address itself
to the graver mischief possible where the jury, while limit-
ing its consideration of the evidence to the crime to which it
relates, properly finds the defendant guilty of one crime but
considers that finding probative of his guilt of another”).
In addition, this court has also positively cited fed-
eral case law that conceptualizes the substantial prejudice
standard, at least in part, by weighing the prejudice to the
defendant against the traditional justifications for joinder—
namely, efficiency and judicial economy. See Delaney, 370
Or at 572 (citing United States v. Armstrong, 621 F2d 951,
954 (9th Cir 1980) (explaining that a moving party needs to
show that joinder was so manifestly prejudicial that it out-
weighed the efficiency benefits of joinder)); see also United
States v. Halper, 590 F2d 422, 428 (2d Cir 1978) (“The trial
court must also take into account the implicit, and often
conflicting, policies * * * [such as] the promotion of the eco-
nomical and efficient administration of criminal justice by
the avoidance of needless multiple trials and the protection
of criminal defendants from the unfair prejudice that may
be caused by the joining of indictments.”); United States v.
Cite as 374 Or 300 (2025) 319
Gottfried, 165 F2d 360, 363 (2d Cir), cert den, 333 US 860,
68 S Ct 738 (1948) (explaining that “literal compliance with
the [r]ule [governing joinder of offenses] is not necessarily
final, in cases where there is danger of confusion or of unfair
prejudice from the joinder”).
Thus, although joinder and severance are distinct,
as previously discussed, the state’s proffered reason for seek-
ing joinder may affect both the estimation of the quantum
of prejudice and the ultimate determination whether that
prejudice rises to the substantial threshold. For example,
where the joinder of charges is based solely on the offenses
being of “the same or similar character,” federal courts and
commentators have expressed skepticism about the bene-
fits of joinder when compared with prejudice to the defen-
dant. See, e.g., Halper, 590 F2d at 430 (“When all that can
be said of two separate offenses is that they are of the ‘same
or similar character,’ the customary justifications for joinder
(efficiency and economy) largely disappear. * * * At the same
time, the risk to the defendant in such circumstances is con-
siderable.”); see also United States v. Jawara, 474 F3d 565,
575 (9th Cir 2007) (“The ‘same or similar character’ prong
of [the federal joinder rule] is the most amorphous and con-
troversial of the three grounds for joinder. Numerous courts
and commentators have questioned the logic and fairness
of such a rule.”); Charles Alan Wright, Federal Practice and
Procedure § 143 (3d ed 1999) (“Joinder on this ground poses
obvious dangers of prejudice to the defendant. * * * [I]t may
fairly be asked whether joinder of this kind should ever be
allowed. If the offenses arise out of separate and unrelated
transactions, there is likely to be little saving in time and
money in having a single trial.”); Note, Joint and Single
Trials under Rule 8 and 14 of the Federal Rules of Criminal
Procedure, 74 Yale LJ 553, 560 (1965) (recommending “abo-
lition of joinder of similar offenses under Rule 8” given its
“lack of utility” and risk of prejudice to the defendant).
Accordingly, joinder based solely on ORS 132.560
(1)(b)(A)—for offenses joined for their “same or similar char-
acter”—may carry a higher risk at the outset than joinder
for other reasons (or joinder based on that factor combined
with other factors). Said another way, joinder for “same of
similar character” purposes may often begin further up the
320 State v. Hernandez-Esteban
scale, closer at the outset to the threshold of “substantial
prejudice” that may require “separate trials of counts or * * *
other relief justice requires.” ORS 132.560(3).
C. Defendant established a case-specific theory of substan-
tial prejudice, supported by the record.
Turning back to the case at hand, we reiterate the
state’s proffered reasons for joinder: (1) that the charged
offenses involving A and M were of the same or similar char-
acter, ORS 132.560(1)(b)(A); and (2) that they constituted
parts of a “common scheme or plan,” ORS 132.560(1)(b)(C).
As explained above, had the state’s joinder decision been
grounded only in “same or similar character,” it would have
carried a higher risk of substantial prejudice at the outset;
however, that risk is tempered somewhat by the state’s addi-
tional basis of “common scheme or plan.” Nonetheless, as
explained next, we conclude that defendant established a
sufficient theory of case-specific substantial prejudice, sup-
ported by the record, resulting from the state’s decision to
join the charges in this case.
Defendant’s theory of case-specific prejudice was
principally grounded in the differences in the nature of the
charged conduct involving A and M, the disparities in the
quality of proof for the conduct involving A as opposed to that
involving M, and the resulting concern that the jury would
improperly use the evidence in the charges involving A when
considering the charges involving M. Beginning with the
nature of the charged conduct: Although the parties do not
dispute that defendant was charged with the “same or sim-
ilar” conduct for both A and M so as to allow joinder, defen-
dant emphasizes that the underlying allegations for the two
sets of charges were substantially different. As noted, defen-
dant was charged with ten counts of first-degree sexual abuse
(eight as to A, and two as to M), and two counts of third-
degree sexual abuse (both as to A). Both crimes require proof
that the defendant knowingly subjected the victim to “sexual
contact.” ORS 163.427; ORS 163.415. For purposes of those
criminal statutes, “sexual contact” means “any touching of
the sexual or other intimate parts of a person or causing such
person to touch the sexual or other intimate parts of the actor
for the purpose of arousing or gratifying the sexual desire of
Cite as 374 Or 300 (2025) 321
either party.” ORS 163.305(5) (emphasis added). Although the
nature of the crimes charged—particularly, the first-degree
crimes—were the same, the nature of defendant’s alleged con-
duct as to each victim was markedly different. The charges
concerning A alleged that defendant—over a four-year period
and on an almost-nightly basis—entered A’s room to touch
her vagina and buttocks while she was sleeping. By contrast,
the charges concerning M alleged that, on one occasion, defen-
dant gave her a “peck” on the lips and, on another occasion,
defendant hugged her from behind, during which she felt his
penis on her buttocks or back.
As to the quality of the proof, defendant argues that
the record before the trial court at the time of the hearing on
his motion to sever showed that he was substantially prej-
udiced from an evidentiary standpoint because the charges
concerning M were significantly weaker than those concern-
ing A. That is so, defendant argues, because the nature of
the alleged conduct against M was not inherently sexual;
the surrounding circumstances did not establish that the
conduct was sexual; M was a less cogent witness whose pre-
trial statements were equivocal and confusing; and defen-
dant had multiple viable defenses to M’s allegations that
were not available with respect to A’s allegations.
The state disagrees with the merits of defendant’s
theory of prejudice. It asserts, instead, that the only case-
specific theory that defendant presented to the trial court
consisted of defendant’s expert testimony that M would be a
less-effective witness than A and that that was insufficient
to make a showing of substantial prejudice.7 As explained
below, we disagree with the state.8
7
The state relatedly asserts that several aspects of defendant’s theory are
unpreserved or otherwise unreviewable. Much of that argument is based on
the premise that, despite the qualifications of defendant’s expert, his testimony
about the state’s provided discovery was insufficient and defendant’s failure to
put that discovery “on the record” precludes this court from considering it. We
discuss one aspect of preservation later; we otherwise reject the state’s argument
without further discussion.
8
We do agree with the state that not all the theories of prejudice that defen-
dant’s expert described case-specific substantial prejudice. For example, his gen-
eral assertion that the likelihood of conviction increases when charges are tried
jointly is the sort of general prejudice present in all joint trials involving sev-
eral charges. See, e.g., United States v. Randazzo, 80 F3d 623, 629 (1st Cir 1996)
(explaining that “[j]ury confusion is a legitimate concern * * * but it cannot be
322 State v. Hernandez-Esteban
Although the state is correct that some of defendant’s
theories of prejudice were not case-specific, contrary to the
state’s assessment, defendant’s theory of case-specific preju-
dice below involved more than his expert’s subjective credibil-
ity assessment of M’s strength as a witness. Rather, defendant
argued to the trial court—based on information in the record
at the time—that the counts involving M were weaker because
M was a less cogent witness and the alleged conduct toward M
had not been inherently sexual. As a result, there was a sub-
stantial risk that the jury would use the counts involving A to
supply proof of sexual purpose as to the counts involving M,
thereby interfering with defendant’s efforts to defend against
the charges involving M. In other words, defendant offered a
case-specific argument that M’s allegations were weaker from
both an evidentiary perspective and as to the nature of the
charged criminal activity. Defendant’s arguments were thus
neither abstract nor generalized but grounded in the per-
ceived risk that the jury in this case might impermissibly use
the evidence of defendant’s abuse of A to supply the mental
state required on the charges against M.
Defendant’s filings emphasized how the evidence
relating to the counts concerning A would function as pro-
pensity evidence for those involving M. The testimony of
defendant’s expert was even more explicit, explaining how
the jury would likely use the evidence from the A counts
to fill gaps in evidence from the M counts, specifically by
sexualizing defendant’s contact with M. Indeed, defendant’s
expert testified that the evidence from the charges involving
A would inevitably color the jury’s interpretation of the evi-
dence from the charges involving M:
“It changes the story when you get to considerations
what happened with [M] from [M] was given a hug by [M’s]
uncle, to [M] was given a hug by her uncle who * * * sexu-
ally abuses children.
“And what do people who sexually abuse children do?
They sexually abuse children.”9
proved by simply noting the number of offenses,” because “[t]here is no automatic
ban on multiple counts in an indictment”).
9
As we have explained, whether substantial prejudice exists is a question of
law, not a question of fact. Delaney, 370 Or at 563. Under OEC 702, expert testimony
is permissible “[i]f scientific, technical or other specialized knowledge will assist the
Cite as 374 Or 300 (2025) 323
Defendant’s expert further explained how the charges
involving M occurred under different circumstances and
were weaker from an evidentiary standpoint than those
involving A. He also discussed the impact that A’s stronger
case would have on M’s weaker one:
“[W]e have sort of these two different cases in terms of
strength or ability of the person to present themselves, * * *
you’re looking at, I believe, four years total for [A] of alleged
sexual abuse incidents.
“Whereas, I want to say for [M] was just maybe two iso-
lated incidents.
“And so, you know, one of the things that happens too
is this is what we call filling the gap or where it—basically
strong evidence buoys weak evidence, as opposed to weak
evidence diluting strong.
“* * * If a juror says, well, * * * I’ve got these gaps in my
story of what happened with [M], but there’s sufficient evi-
dence with [A] to * * * fill in the gaps. Oh, right. Why did
this happen? Oh, because he’s a bad guy or because he is a
person that sexually abuses children.”
(Emphasis added.)
Defendant also argued that he established substan-
tial prejudice because of the impact of joinder on his ability
to present a defense. During the hearing, the state acknowl-
edged—based on defendant’s other filings before the court at
the same time—that it appeared defendant would be arguing
that M was mistaken about the nature of the touching, in part
based on her CARES NW interview. That argument further
supports defendant’s assertions of case-specific substantial
prejudice that he would experience as a result of the joinder.10
trier of fact to understand the evidence or to determine a fact in issue.” Our decision
today should not be read to suggest that expert testimony is required in joinder or
severance litigation—for example, much of the expert testimony about prejudice
and the facts and evidence of the case could have equally been presented by the
attorney.
10
Contrary to an argument raised by the state, defendant’s argument about
his defenses—although addressed in a more cursory manner by his expert’s
presentation—satisfied the practical requirements of preservation on this record,
because both parties and the court were aware of defendant’s concerns about his
ability to defend against the M charges when the trial court denied defendant’s
motion. See State v. Skotland, 372 Or 319, 329, 549 P3d 534 (2024) (“[T]he winds of
preservation can be gauged by looking to the weathervane of trial court surprise:
324 State v. Hernandez-Esteban
We need not, and do not, decide whether any specific
component of defendant’s argument, standing alone, would
have been sufficient to establish case-specific substantial
prejudice. Rather, our task is to consider the record that
defendant made, in its entirety. And having considered that
record as a whole, we conclude that defendant presented a
case-specific theory of prejudice to the trial court and, on
the merits, the record supported that theory. Defendant’s
argument fit comfortably into the theories that we identified
in Delaney, 370 Or at 575, and clearly articulated how and
why the jury would likely base its decision on either emotion
or impermissible inferences. To reiterate, the nature of the
charged conduct, while possibly sufficiently similar in the
nature of the crimes charged to permit joinder, was none-
theless substantially different. Further, the more serious
counts against one of the two alleged victims were supported
by substantially stronger evidence, which could, in turn,
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. In sum, when those aspects
of the record are considered together, it is not difficult for us
to conclude that a juror’s consideration of the charges and
evidence involving A would so influence their consideration
involving M as to threaten defendant’s right to a fair trial.
We therefore conclude that defendant met the threshold for
establishing that he was substantially prejudiced by joinder.
D. The Trial Court Erred in Denying Defendant’s Motion
to Sever
Having concluded that, as a matter of law, defen-
dant made a sufficient showing of case-specific substantial
prejudice, we also conclude that the trial court erred in deny-
ing defendant’s motion to sever. Although ORS 132.560(3)
grants a trial court the discretion to “order an election or
separate trials of counts or provide whatever other relief
justice requires,” when case-specific substantial prejudice
has been established, justice requires some relief. It is not
Would the trial court be taken aback to find itself reversed on this issue, for this rea-
son?” (Emphasis in original.)); State v. Walker, 350 Or 540, 550, 258 P3d 1228 (2011)
(“Particularly in criminal cases, in which there is a premium on considerations
of cost and speed, the realities of trial practice may be such that fairly abbrevi-
ated short-hand references suffice to put all on notice about the nature of a party’s
arguments.”).
Cite as 374 Or 300 (2025) 325
within the permissible bounds of discretion for a trial court
to do nothing. Because the trial court, in this case, denied
defendant’s motion in its entirety—and accordingly, pro-
vided no relief in any form—the trial court erred.11
E. The Trial Court’s Error was Harmless as to the Charged
Crimes Against A
Article VII (Amended), section 3, of the Oregon
Constitution requires convictions to be affirmed, notwith-
standing an error committed at trial, if there was “little
likelihood that the * * * error affected the verdict[.]” State v.
Davis, 336 Or 19, 32, 77 P3d 1111 (2003). Here, in light of
the record at trial and our previous explanation of the risks
of joinder, and with due consideration of the arguments by
the state otherwise, we simply cannot conclude that there
was little likelihood joining these cases didn’t affect, to some
degree, the verdict as to M.
We reach a different result, however, as to A.
Defendant has argued exclusively that the error in failing to
sever these cases created harms as to only the counts alleged
to have been committed against M. Defendant has made no
argument that the error in severing these cases was harm-
ful to him as to the counts alleged to have been committed
against A. Given that framing, we cannot conclude that the
trial court’s error requires reversal of all parts of defendant’s
judgment of conviction. We therefore reverse the trial court’s
judgment respecting the single count of conviction alleging
conduct against M and remand only that aspect of the judg-
ment for a new trial. We otherwise affirm the court’s judgment.
The decision of the Court of Appeals is affirmed in
part and reversed in part. The judgment of the circuit court
is affirmed in part and reversed in part, and the case is
remanded to the circuit court for further proceedings.
11
Although defendant proposed separate opening statements and closing
arguments as a potential alternative remedy to severance, the trial court denied
defendant’s motion in toto, and thus provided no relief whatsoever. And although
the state points to a jury instruction that the court delivered on separate consid-
eration of evidence, that instruction was discussed by the court after the trial
had largely concluded, not as a result of the denial of the pretrial severance
motion. We do not read the record to suggest that the trial court employed that
instruction as a remedial measure to decrease the prejudice resulting from join-
der. Accordingly, the question of whether an alternative remedy short of severing
the charges would have been adequate is not properly before this court.